A classic essay on the utility
of history was written in 1874 by Friedrich Nietzsche entitled "On the
Uses and Disadvantages of History for Life." Expounding on Nietzsche's
essay, Judge Richard Posner[1] wrote:[2]

"Law is the most
historically oriented, or if you like the most backward-looking, the most
'past-dependent,' of the professions.It venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom, seniority,
gerontocracy, and interpretation conceived of as a method of recovering
history.It is suspicious of
innovation, discontinuities, 'paradigm shifts,' and the energy and brashness of
youth.These ingrained attitudes are
obstacles to anyone who wants to re-orient law in a more pragmatic
direction.But, by the same token, pragmaticjurisprudence must come to terms with history.”

When Congress enacted the Indigenous
Peoples Rights Act (IPRA), it introduced radical concepts into the
Philippine legal system which appear to collide with settled constitutional and
jural precepts on state ownership of land and other natural resources.The sense and subtleties of this law cannot
be appreciated without considering its distinct sociology and the labyrinths of
its history.This Opinion attempts to
interpret IPRA by discovering its soul shrouded by the mist of our
history.After all, the IPRA was
enacted by Congress not only to fulfill the constitutional mandate of
protecting the indigenous cultural communities' right to their ancestral land
but more importantly, to correct a grave historical injustice to our
indigenous people.

This Opinion discusses the
following:

I.The Development of the Regalian Doctrine in the Philippine Legal
System.

A.The Laws of the Indies

B.Valenton v. Murciano

C.The Public Land Acts and the Torrens System

D.The Philippine Constitutions

II.The Indigenous Peoples Rights Act (IPRA).

A.
Indigenous Peoples

1. Indigenous Peoples:
Their History

2. Their Concept of Land

III.The IPRA is a Novel Piece of Legislation.

A. Legislative History

IV.The Provisions of the IPRA Do Not Contravene the Constitution.

A.Ancestral domains and ancestral lands are the
private property of indigenous peoples and do not constitute part of the land
of the public domain.

1. The right
to ancestral domains and ancestral lands: how acquired

2. The
concept of native title

(a) Cariño
v. Insular Government

(b) Indian
Title to land

(c) Why
the Cariño doctrine is unique

3. The option
of securing a torrens title to the ancestral land

B.The right of ownership and possession by
the ICCs/IPs to their ancestral domains is a limited form of ownership and does
not include the right to alienate the same.

1. The indigenous concept of
ownership and customary law

C.
Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine
enshrined in Section 2, Article XII of the 1987 Constitution.

1. The rights of ICCs/IPs
over their ancestral domains and lands

2. The
right of ICCs/IPs to develop lands and natural resources within the ancestral
domains does not deprive the State of ownership over the natural resources,
control and supervision in their development and exploitation.

(a)
Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7(a) of the law on ownership of ancestral domains and is ultra
vires.

(b) The
small-scale utilization of natural resources in Section 7 (b) of the IPRA is
allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution.

(c) The
large-scale utilization of natural resources in Section 57 of the IPRA may be
harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987
Constitution.

V.The IPRA is a Recognition of Our Active Participation in the International
Indigenous Movement.

DISCUSSION

I. THE
DEVELOPMENT OF THE REGALIAN DOCTRINEIN THE PHILIPPINE LEGAL
SYSTEM.

A. The Laws of the Indies

The capacity of the State to
own or acquire property is the state's power of dominium.[3]This was the foundation for the early Spanish decrees embracing the
feudal theory of jura regalia.The "Regalian Doctrine" or jura regaliais a
Western legal concept that was first introduced by the Spaniards into the
country through the Laws of the Indies and the Royal Cedulas.The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes
de las Indias, set the policy of the Spanish Crown with respect to the
Philippine Islands in the following manner:

"We, having acquired full
sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name,
still pertaining to the royal crown and patrimony, it is our will that all lands
which are held without proper and true deeds of grant be restored to us as they
belong to us, in order that after reserving before all what to us or to our
viceroys, audiencias, and governors may seem necessary for public squares,
ways, pastures, and commons in those places which are peopled, taking into
consideration not only their present condition, but also their future and their
probable increase, and after distributing to the natives what may be necessary
for tillage and pasturage, confirming them in what they now have and giving
them more if necessary, all the rest of said lands may remain free and
unencumbered for us to dispose of as we may wish.

We therefore order and command
that all viceroys and presidents of pretorial courts designate at such time as
shall to them seem most expedient, a suitable period within which all
possessors of tracts, farms, plantations, and estates shall exhibit to them and
to the court officers appointed by them for this purpose, their title deeds
thereto. And those who are in possession by virtue of proper deeds and
receipts, or by virtue of just prescriptive right shall be protected, and all
the rest shall be restored to us to be disposed of at our will."[4]

The
Philippines passed to Spain by virtue of "discovery" and conquest.
Consequently, all lands became the exclusive patrimony and dominion of the
Spanish Crown.The Spanish Government
took charge of distributing the lands by issuing royal grants and concessions
to Spaniards, both military and civilian.[5]Private land titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.[6]

The Laws of the Indies were
followed by the Ley Hipotecaria, or the Mortgage Law of 1893.[7] The Spanish Mortgage Law provided for the systematic
registration of titles and deeds as well as possessory claims.The law sought to register and tax lands
pursuant to the Royal Decree of 1880.The Royal Decree of 1894, or the "Maura Law," was partly an
amendment of the Mortgage Law as well as the Laws of the Indies, as already
amended by previous orders and decrees.[8] This was the last Spanish land law promulgated in
the Philippines.It required the
"adjustment" or registration of all agricultural lands, otherwise the
lands shall revert to the state.

Four years later, by the Treaty
of Paris of December 10, 1898, Spain ceded to the government of the United
States all rights, interests and claims over the national territory of the
Philippine Islands.In 1903, the United
States colonial government, through the Philippine Commission, passed Act
No. 926, the first Public Land Act.

B. Valenton v. Murciano

In 1904, under the American
regime, this Court decided the case of Valenton v. Murciano.[9]

Valenton resolved the question of which is the better basis
for ownership of land:long-time
occupation or paper title.Plaintiffs
had entered into peaceful occupation of the subject land in 1860.Defendant's predecessor-in-interest, on the
other hand, purchased the land from the provincial treasurer of Tarlac in
1892.The lower court ruled against the
plaintiffs on the ground that they had lost all rights to the land by not
objecting to the administrative sale.Plaintiffs appealed the judgment, asserting that their 30-year adverse
possession, as an extraordinary period of prescription in the Partidas
and the Civil Code, had given them title to the land as against everyone,
including the State; and that the State, not owning the land, could not validly
transmit it.

The Court, speaking through
Justice Willard, decided the case on the basis of "those special laws
which from earliest time have regulated the disposition of the public lands in
the colonies."[10]The question posed by the Court was:"Did these special laws recognize any right of prescription as against
the State as to these lands; and if so, to what extent was it recognized?"

Prior to 1880, the Court said,
there were no laws specifically providing for the disposition of land in the
Philippines.However, it was understood
that in the absence of any special law to govern a specific colony, the Laws of
the Indies would be followed.Indeed,
in the Royal Order of July 5, 1862, it was decreed that until regulations on
the subject could be prepared, the authorities of the Philippine Islands should
follow strictly the Laws of the Indies, the Ordenanza of the Intendentes
of 1786, and the Royal Cedula of 1754.[11]

Quoting the preamble of Law
14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias,
the court interpreted it as follows:

"In the preamble of this
law there is, as is seen, a distinct statement that all those lands belong to
the Crown which have not been granted by Philip, or in his name, or by the
kings who preceded him.This
statement excludes the idea that there might be lands not so granted, that did
not belong to the king. It excludes the idea that the king was not still the
owner of all ungranted lands, because some private person had been in the
adverse occupation of them.By the
mandatory part of the law all the occupants of the public lands are required to
produce before the authorities named, and within a time to be fixed by them,
their title papers.And those who had
good title or showed prescription were to be protected in their holdings.It is apparent that it was not the intention
of the law that mere possession for a length of time should make the possessors
the owners of the land possessed by them without any action on the part of the
authorities."[12]

The preamble stated that all
those lands which had not been granted by Philip, or in his name, or by the
kings who preceded him, belonged to the Crown.[13]For those lands granted by the king, the decree provided for a system of
assignment of such lands.It also
ordered that all possessors of agricultural land should exhibit their title
deed, otherwise, the land would be restored to the Crown.[14]

The Royal Cedula of October
15, 1754 reinforced the Recopilacion when it ordered the Crown's
principal subdelegate to issue a general order directing the publication of the
Crown's instructions:

"x x
x to the end that any and all persons who, since the year 1700, and up to the
date of the promulgation and publication of said order, shall have occupied
royal lands, whether or not x x x cultivated or tenanted, mayx x x appear and exhibit to said
subdelegates the titles and patents by virtue of which said lands are occupied.
x x x.Said subdelegates will at the
same time warn the parties interested that in case of their failure to present
their title deeds within the term designated, without a just and valid reason
therefor, they will be deprived of and evicted from their lands, and they will
be granted to others."[15]

On June 25, 1880, the Crown
adopted regulations for the adjustment of lands "wrongfully occupied"
by private individuals in the Philippine Islands.Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and
concluded that plaintiffs' case fared no better under the 1880 decree and other
laws which followed it, than it did under the earlier ones.Thus as a general doctrine, the Court
stated:

"While the State has
always recognized the right of the occupant to a deed if he proves a possession
for a sufficient length of time, yet it has always insisted that he must
make that proof before the proper administrative officers, and obtain from them
his deed, and until he did that the State remained the absolute owner."[16]

In conclusion,
the Court ruled:"We hold that from
1860 to 1892 there was no law in force in these Islands by which the plaintiffs
could obtain the ownership of these lands by prescription, without any action
by the State."[17]Valenton had no rights other than those which accrued to mere
possession. Murciano, on the other hand, was deemed to be the owner of the land
by virtue of the grant by the provincial secretary.In effect, Valenton upheld the Spanish concept of state ownership
of public land.

As a fitting observation, the
Court added that "[t]he policy pursued by the Spanish Government from
earliest times, requiring settlers on the public lands to obtain title deeds
therefor from the State, has been continued by the American Government in Act
No. 926."[18]

C. The Public Land Acts and
the Torrens System

Act No. 926, the first Public Land Act, was passed in pursuance
of the provisions of the the Philippine Bill of 1902.The law governed the disposition of lands of the public
domain.It prescribed rules and regulations
for the homesteading, selling, and leasing of portions of the public domain of
the Philippine Islands, and prescribed the terms and conditions to enable
persons to perfect their titles to public lands in the Islands.It also provided for the "issuance of
patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the completion of
imperfect titles, and for the cancellation or confirmation of Spanish
concessions and grants in the Islands." In short, the Public Land Act
operated on the assumption that title to public lands in the Philippine Islands
remained in the government;[19]and that the government's title to public land sprung from the Treaty of
Paris and other subsequent treaties between Spain and the United States.[20] The term "public land" referred to all
lands of the public domain whose title still remained in the government and are
thrown open to private appropriation and settlement,[21] and excluded the patrimonial property of the government
and the friar lands.[22]

Act No. 926 was superseded
in 1919 by Act 2874, the second Public Land Act.This new law
was passed under the Jones Law.It was
more comprehensive in scope but limited the exploitation of agricultural lands
to Filipinos and Americans and citizens of other countries which gave Filipinos
the same privileges.[23]After the passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141.Commonwealth Act No. 141 remains the present Public Land Law and it is
essentially the same as Act 2874.The
main difference between the two relates to the transitory provisions on the
rights of American citizens and corporations during the Commonwealth period at
par with Filipino citizens and corporations.[24]

Grants of public land were
brought under the operation of the Torrens system under Act 496, or the Land
Registration Law of 1903.Enacted by the Philippine Commission, Act
496 placed all public and private lands in the Philippines under the Torrens
system.The law is said to be almost a
verbatim copy of the Massachussetts Land Registration Act of 1898,[25]which, in turn, followed the principles and procedure of the Torrens
system of registration formulated by Sir Robert Torrens who patterned it after
the Merchant Shipping Acts in South Australia.The Torrens system requires that the government issue an official
certificate of title attesting to the fact that the person named is the owner
of the property described therein, subject to such liens and encumbrances as
thereon noted or the law warrants or reserves.[26] The certificate of title is indefeasible and
imprescriptible and all claims to the parcel of land are quieted upon issuance
of said certificate.This system highly
facilitates land conveyance and negotiation.[27]

D. The Philippine
Constitutions

The Regalian doctrine was
enshrined in the 1935 Constitution.One of the fixed and dominating objectives of the 1935 Constitutional
Convention was the nationalization and conservation of the natural resources of
the country.[28]There was an overwhelming
sentiment in the Convention in favor of the principle of state ownership of
natural resources and the adoption of the Regalian doctrine.[29]State ownership of natural resources was seen as a necessary starting
point to secure recognition of the state's power to control their disposition,
exploitation, development, or utilization.[30] The delegates to the Constitutional Convention very
well knew that the concept of State ownership of land and natural resources was
introduced by the Spaniards, however, they were not certain whether it was
continued and applied by the Americans.To remove all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.[31]

Thus, the 1935 Constitution,
in Section 1 of Article XIII on "Conservation and Utilization of Natural
Resources," reads as follows:

"Sec. 1. All
agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and
other natural resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be limited to
citizens of the Philippines, or to corporations or associations at least sixty
per centum of the capital of which is owned by such citizens, subject to any
existing right, grant, lease, or concession at the time of the inauguration of
the Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization
of any of the natural resources shall be granted for a period exceeding
twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant."

The 1973 Constitution reiterated
the Regalian doctrine in Section 8, Article XIV on the "National Economy
and the Patrimony of the Nation," to wit:

"Sec. 8. All
lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural
resources of the Philippines belong to the State.With the exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain, natural resources
shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable
for not more than twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure
and the limit of the grant."

The 1987 Constitution
reaffirmed the Regalian doctrine in Section 2 of Article XII on "National
Economy and Patrimony," to wit:

"Sec. 2. All lands
of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State.With the exception of agricultural lands,
all other natural resources shall not be alienated.The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State.The State may directly undertake such
activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such
citizens.Such agreements may be
for a period not exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may be provided by
law.In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the
grant.

xxx."

Simply stated, all lands
of the public domain as well as all natural resources enumerated
therein, whether on public or private land, belong to the State.It is this concept of State ownership that
petitioners claim is being violated by the IPRA.

II.
THE INDIGENOUS PEOPLES RIGHTS ACT.

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and
Promote the Rights of Indigenous Cultural Communities/ Indigenous Peoples,
Creating a National Commission on Indigenous Peoples, Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It
is simply known as "The Indigenous Peoples Rights Act of 1997" or the
IPRA.

The IPRA recognizes the
existence of the indigenous cultural communities or indigenous peoples
(ICCs/IPs) as a distinct sector in Philippine society.It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and defines the
extent of these lands and domains.The
ownership given is the indigenous concept of ownership under customary law
which traces its origin to native title.

a. the right to transfer land/property
to/among members of the same ICCs/IPs, subject to customary laws and traditions
of the community concerned;

b. the right to redemption
for a period not exceeding 15 years from date of transfer, if the transfer is
to a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP,
or if the transfer is for an unconscionable consideration.[33]

Within their ancestral domains
and ancestral lands, the ICCs/IPs are given the right to self-governance and
empowerment,[34]social justice and human rights,[35] the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the right to
develop their own sciences and technologies.[36]

To carry out the policies of
the Act, the law created the National Commission on Indigenous Peoples
(NCIP).The NCIP is an independent
agency under the Office of the President and is composed of seven (7)
Commissioners belonging to ICCs/IPs from each of the ethnographic areas--
Region I and the Cordilleras; Region II; the rest of Luzon; Island groups
including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas;
Northern and Western Mindanao; Southern and Eastern Mindanao; and Central
Mindanao.[37]The NCIP took over the functions of the Office for Northern Cultural
Communities and the Office for Southern Cultural Communities created by former
President Corazon Aquino which were merged under a revitalized structure.[38]

Disputes involving ICCs/IPs
are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted
quasi-judicial powers.[39]The NCIP's decisions may be appealed to the Court of Appeals by a
petition for review.

Any person who violates any of
the provisions of the Act such as, but not limited to, unauthorized and/or
unlawful intrusion upon ancestral lands and domains shall be punished in
accordance with customary laws or imprisoned from 9 months to 12 years and/or
fined from P100,000.00 to P500,000.00 and obliged to pay damages.[40]

A. Indigenous Peoples

The IPRA is a law dealing with
a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or
the Indigenous Peoples (IPs).The term
"ICCs" is used in the 1987 Constitution while that of "IPs"
is the contemporary international language in the International Labor
Organization (ILO) Convention 169[41] and the United Nations (UN) Draft Declaration on the
Rights of Indigenous Peoples.[42]

ICCs/IPs are defined by the IPRA as:

"Sec. 3 [h].
Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of
people or homogeneous societies identified by self-ascription and ascription by
others, who have continuously lived as organized community on communally
bounded and defined territory, and who have, under claims of ownership since
time immemorial, occupied, possessed and utilized such territories, sharing
common bonds of language, customs, traditions and other distinctive cultural
traits, or who have, through resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. ICCs/IPs shall
likewise include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country, at the time of conquest
or colonization, or at the time of inroads of non-indigenous religions and
cultures, or the establishment of present state boundaries, who retain some or
all of their own social, economic, cultural and political institutions, but who
may have been displaced from their traditional domains or who may have
resettled outside their ancestral domains."

Indigenous
Cultural Communities or Indigenous Peoples refer to a group of people or
homogeneous societies who have continuously lived as an organized community on
communally bounded and defined territory.These groups of people have
actually occupied, possessed and utilized their territories under claim of
ownership since time immemorial.They
share common bonds of language, customs, traditions and other distinctive
cultural traits, or, they, by their resistance to political, social and
cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the Filipino majority. ICCs/IPs also include
descendants of ICCs/IPs who inhabited the country at the time of conquest or
colonization, who retain some or all of their own social, economic, cultural
and political institutions but who may have been displaced from their
traditional territories or who may have resettled outside their ancestral
domains.

1.
Indigenous Peoples: Their History

Presently, Philippine
indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands.They are composed of 110 tribes and are as
follows:

4. In Region V-- Aeta of
Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of
Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of
Sorsogon; and the Pullon of Masbate and Camarines Sur.

5. In Region VI-- Ati of
Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental;
the Corolano and Sulod.

6. In Region VII-- Magahat of
Negros Oriental and Eskaya of Bohol.

7. In Region IX-- the Badjao
numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of
Basilan, the Samal, Subanon and Yakat.

8. Region X-- Numbering 1.6 million
in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding
of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del
Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of
Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the
Agusan provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI-- There are
about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of
Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del
Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao
Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South
Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo
of South Cotabato; and Bagobo of Davao del sur and South Cotabato.

How these
indigenous peoples came to live in the Philippines goes back to as early as
25,000 to 30,000 B.C.

Before the time of Western
contact, the Philippine archipelago
was peopled largely by the Negritos, Indonesians and Malays.[44]The strains from these groups eventually gave rise to common cultural features
which became the dominant influence in ethnic reformulation in the
archipelago.Influences from the
Chinese and Indian civilizations in the third or fourth millenium B.C.
augmented these ethnic strains.Chinese
economic and socio-cultural influences came by way of Chinese porcelain, silk
and traders.Indian influence found
their way into the religious-cultural aspect of pre-colonial society.[45]

The ancient Filipinos
settled beside bodies of water.Hunting
and food gathering became supplementary activities as reliance on them was
reduced by fishing and the cultivation of the soil.[46]From the hinterland, coastal, and riverine communities, our ancestors
evolved an essentially homogeneous culture, a basically common way of life
where nature was a primary factor.Community life throughout the archipelago was influenced by, and
responded to, common ecology.The
generally benign tropical climate and the largely uniform flora and fauna favored
similarities, not differences.[47] Life was essentially subsistence but not harsh.[48]

The early Filipinos had
a culture that was basically Malayan in structure and form.They had languages that traced their origin
to the Austronesian parent-stock and used them not only as media of daily
communication but also as vehicles for the expression of their literary moods.[49]They fashioned concepts and beliefs about the world that they could not
see, but which they sensed to be part of their lives.[50] They had their own religion and religious
beliefs.They believed in the
immortality of the soul and life after death.Their rituals were based on beliefs in a ranking deity whom they called
Bathalang Maykapal, and a host of other deities, in the environmental spirits
and in soul spirits.The early
Filipinos adored the sun, the moon, the animals and birds, for they seemed to
consider the objects of Nature as something to be respected.They venerated almost any object that was
close to their daily life, indicating the importance of the relationship
between man and the object of nature.[51]

The unit of government was the
"barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores.[52]The barangay was basically a family-based community and consisted of
thirty to one hundred families.Each
barangay was different and ruled by a chieftain called a "dato." It
was the chieftain's duty to rule and govern his subjects and promote their
welfare and interests.A chieftain had
wide powers for he exercised all the functions of government.He was the executive, legislator and judge
and was the supreme commander in time of war.[53]

Laws were either customary
or written.Customary laws were handed
down orally from generation to generation and constituted the bulk of the laws
of the barangay. They were preserved in songs and chants and
in the memory of the elder persons in the community.[54] The written laws were
those that the chieftain and his elders promulgated from time to time as the
necessity arose.[55] The oldest known written
body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D.Other old codes are the Muslim Code of
Luwaran and the Principal Code of Sulu.[56] Whether customary or
written, the laws dealt with various subjects, such as inheritance, divorce, usury,
loans, partnership, crime and punishment, property rights, family relations and
adoption.Whenever disputes arose,
these were decided peacefully through a court composed by the chieftain as
"judge" and the barangay elders as "jury." Conflicts arising
between subjects of different barangays were resolved by arbitration in which a
board composed of elders from neutral barangays acted as arbiters.[57]

Baranganic society had a
distinguishing feature: the absence of private property in land. The chiefs
merely administered the lands in the name of the barangay.The social order was an extension of the
family with chiefs embodying the higher unity of the community.Each individual, therefore, participated in
the community ownership of the soil and the instruments of production as a
member of the barangay.[58]This ancient communalism was practiced in accordance
with the concept of mutual sharing of resources so that no individual,
regardless of status, was without sustenance.Ownership of land was non-existent or unimportant and the right of
usufruct was what regulated the development of lands.[59] Marine resources and
fishing grounds were likewise free to all.Coastal communities depended for their economic welfare on the kind of
fishing sharing concept similar to those in land communities.[60] Recognized leaders, such
as the chieftains and elders, by virtue of their positions of importance,
enjoyed some economic privileges and benefits.But their rights, related to either land and sea, were subject to their
responsibility to protect the communities from danger and to provide them with
the leadership and means of survival.[61]

Sometime in the 13th
century, Islam was introduced to the archipelago in Maguindanao.The
Sultanate of Sulu was established and claimed jurisdiction over territorial
areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga.
Four ethnic groups were within this jurisdiction:Sama, Tausug, Yakan and Subanon.[62]The Sultanate of Maguindanao spread out from Cotabato
toward Maranao territory, now Lanao del Norte and Lanao del Sur.[63]

The Muslim societies
evolved an Asiatic form of feudalism where land was still held in common but
was private in use.This is clearly indicated in the Muslim Code
of Luwaran.The Code contains a
provision on the lease of cultivated lands.It, however, has no provision for the acquisition, transfer, cession or
sale of land.[64]

The societies encountered by Magellan
and Legaspi therefore were primitive economies where most production was
geared to the use of the producers and to the fulfillment of kinship
obligations.They were not economies
geared to exchange and profit.[65]Moreover, the family basis of barangay membership as
well as of leadership and governance worked to splinter the population of the
islands into numerous small and separate communities.[66]

When the Spaniards settled
permanently in the Philippines in 1565, they found the Filipinos living in
barangay settlements scattered along water routes and river banks.One of the
first tasks imposed on the missionaries and the encomenderos was to collect all
scattered Filipinos together in a reduccion.[67]As early as 1551, the Spanish government assumed an
unvarying solicitous attitude towards the natives.[68] The Spaniards regarded it
a sacred "duty to conscience and humanity to civilize these less fortunate
people living in the obscurity of ignorance" and to accord them the
"moral and material advantages" of community life and the
"protection and vigilance afforded them by the same laws."[69]

The Spanish missionaries were
ordered to establish pueblos where the church and convent would be
constructed.All the new Christian
converts were required to construct their houses around the church and the
unbaptized were invited to do the same.[70]With the reduccion, the Spaniards attempted to
"tame" the reluctant Filipinos through Christian indoctrination using
the convento/casa real/plaza complex as focal point.The reduccion, to the Spaniards, was
a "civilizing" device to make the Filipinos law-abiding citizens of
the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic
culture and civilization.[71]

All lands lost by the old
barangays in the process of pueblo organization as well as all lands not
assigned to them and the pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king.It was
from the realengas that land grants were made to non-Filipinos.[72]

The abrogation of the
Filipinos' ancestral rights in land and the introduction of the concept of public
domain were the most immediate fundamental results of Spanish colonial theory
and law.[73]The concept that the
Spanish king was the owner of everything of value in the Indies or colonies was
imposed on the natives, and the natives were stripped of their ancestral rights
to land.[74]

Increasing their foothold in
the Philippines, the Spanish colonialists, civil and religious, classified the
Filipinos according to their religious practices and beliefs, and divided them
into three types .First were the Indios,
the Christianized Filipinos, who generally came from the lowland
populations.Second, were the Moros
or the Muslim communities, and third, were the infieles or the indigenous
communities.[75]

The Indio was a product
of the advent of Spanish culture.This
class was favored by the Spaniards and was allowed certain status although
below the Spaniards.The Moros and
infieles were regarded as the lowest classes.[76]

The Moros and infieles
resisted Spanish rule and Christianity. The Moros were driven from Manila
and the Visayas to Mindanao; while the infieles, to the hinterlands.The Spaniards did not pursue them into the
deep interior.The upland societies
were naturally outside the immediate concern of Spanish interest, and the
cliffs and forests of the hinterlands were difficult and inaccessible, allowing
the infieles, in effect, relative security.[77]Thus, the infieles, which were peripheral to
colonial administration, were not only able to preserve their own culture but
also thwarted the Christianization process, separating themselves from the
newly evolved Christian community.[78] Their own political,
economic and social systems were kept constantly alive and vibrant.

The pro-Christian or pro-Indio
attitude of colonialism brought about a generally mutual feeling of suspicion,
fear, and hostility between the Christians on the one hand and the
non-Christians on the other.Colonialism tended to divide and rule an otherwise culturally and
historically related populace through a colonial system that exploited both the
virtues and vices of the Filipinos.[79]

President McKinley, in his
instructions to the Philippine Commission of April 7, 1900, addressed the
existence of the infieles:

"In dealing with the
uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government, and under which many of those tribes are now living
in peace and contentment, surrounded by civilization to which they are unable
or unwilling to conform.Such tribal
government should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs."[80]

Placed in an
alternative of either letting the natives alone or guiding them in the path of
civilization, the American government chose "to adopt the latter measure as
one more in accord with humanity and with the national conscience."[81]

The Americans classified
the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos.The term
"non-Christian" referred not to religious belief, but to a geographical
area, and more directly, "to natives of the Philippine Islands of a low
grade of civilization, usually living in tribal relationship apart from settled
communities."[82]

Like the Spaniards, the
Americans pursued a policy of assimilation.In 1903, they passed Act
No. 253 creating the Bureau of Non-Christian Tribes (BNCT).Under the Department of the Interior, the
BNCT's primary task was to conduct ethnographic research among unhispanized
Filipinos, including those in Muslim Mindanao, with a "special view to
determining the most practicable means for bringing about their advancement in
civilization and prosperity." The BNCT was modeled after the bureau
dealing with American Indians.The
agency took a keen anthropological interest in Philippine cultural minorities
and produced a wealth of valuable materials about them.[83]

The 1935 Constitution did
not carry any policy on the non-Christian Filipinos.The raging issue then was the conservation of the national
patrimony for the Filipinos.

In 1957, the Philippine Congress passed R.A. No. 1888,
an "Act to effectuate in a more rapid and complete manner the economic,
social, moral and political advancement of the non-Christian Filipinos or
national cultural minorities and to render real, complete, and permanent the integration
of all said national cultural minorities into the body politic, creating the Commission
on National Integration charged with said functions." The law called
for a policy of integration of indigenous peoples into the Philippine
mainstream and for this purpose created the Commission on National
Integration (CNI).[84]The CNI was given, more or less, the same task as the
BNCT during the American regime.The
post-independence policy of integration was like the colonial policy of
assimilation understood in the context of a guardian-ward relationship.[85]

The policy of assimilation and
integration did not yield the desired result.Like the Spaniards and Americans, government attempts at integration
met with fierce resistance.Since
World War II, a tidal wave of Christian settlers from the lowlands of Luzon and
the Visayas swamped the highlands and wide open spaces in Mindanao.[86]Knowledge by the settlers of the Public Land Acts and
the Torrens system resulted in the titling of several ancestral lands in the settlers'
names.With government initiative and
participation, this titling displaced several indigenous peoples from their
lands.Worse, these peoples were
also displaced by projects undertaken by the national government in the name of
national development.[87]

It was in the 1973
Constitution that the State adopted the following provision:

"The State shall consider
the customs, traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State policies."[88]

For the first time in
Philippine history, the "non-Christian tribes" or the "cultural
minorities" were addressed by the highest law of the Republic, and they
were referred to as "cultural communities." More importantly this time, their
"uncivilized" culture was given some recognition and their
"customs, traditions, beliefs and interests" were to be considered by
the State in the formulation and implementation of State policies.President Marcos abolished the CNI
and transferred its functions to the Presidential Adviser on National
Minorities (PANAMIN).The PANAMIN
was tasked to integrate the ethnic groups that sought full integration into the
larger community, and at the same time "protect the rights of those who
wish to preserve their original lifeways beside the larger community."[89]In short, while still adopting the integration
policy, the decree recognized the right of tribal Filipinos to preserve their
way of life.[90]

In 1974, President Marcos promulgated P.D. No. 410,
otherwise known as the Ancestral Lands Decree.The decree provided for the issuance of land occupancy
certificates to members of the national cultural communities who were given up
to 1984 to register their claims.[91] In 1979, the Commission
on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving
small settlers, landowners, and tribal Filipinos.[92]

Despite the promulgation of
these laws, from 1974 to the early 1980's, some 100,000 Kalingas and Bontoks of
the Cordillera region were displaced by the Chico River dam project of the
National Power Corporation (NPC).The
Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries
Company (BUSCO).In Agusan del Sur, the
National Development Company was authorized by law in 1979 to take
approximately 40,550 hectares of land that later became the NDC-Guthrie
plantation in Agusan del Sur.Most of
the land was possessed by the Agusan natives.[93]Timber concessions, water projects, plantations,
mining, and cattle ranching and other projects of the national government led
not only to the eviction of the indigenous peoples from their land but also to
the reduction and destruction of their natural environment.[94]

The Aquino government signified
a total shift from the policy of integration to one of preservation.Invoking
her powers under the Freedom Constitution, President Aquino created the
Office of Muslim Affairs, Office for Northern Cultural Communities and the
Office for SouthernCultural Communities all under the Office of the
President.[95]

The 1987 Constitution
carries at least six (6) provisions which insure the right of tribal Filipinos
to preserve their way of life.[96]This Constitution goes
further than the 1973 Constitution by expressly guaranteeing the rights of
tribal Filipinos to their ancestral domains and ancestral lands.By recognizing their right to their
ancestral lands and domains, the State has effectively upheld their right to
live in a culture distinctly their own.

2.
Their Concept of Land

Indigenous peoples share
distinctive traits that set them
apart from the Filipino mainstream.They are non-Christians.They
live in less accessible, marginal, mostly upland areas.They have a system of self-government not
dependent upon the laws of the central administration of the Republic of the
Philippines.They follow ways of life
and customs that are perceived as different from those of the rest of the
population.[97]The kind of response the indigenous peoples chose to
deal with colonial threat worked well to their advantage by making it difficult
for Western concepts and religion to erode their customs and traditions.The "infieles societies" which had
become peripheral to colonial administration, represented, from a cultural perspective,
a much older base of archipelagic culture.The political systems were still structured on the patriarchal and
kinship oriented arrangement of power and authority.The economic activities were governed by the concepts of an
ancient communalism and mutual help.The social structure which emphasized division of labor and distinction
of functions, not status, was maintained.The cultural styles and forms of life portraying the varieties of social
courtesies and ecological adjustments were kept constantly vibrant.[98]

Land is the central element
of the indigenous peoples' existence.There is no traditional concept of
permanent, individual, land ownership.Among the Igorots, ownership of land more accurately applies to the
tribal right to use the land or to territorial control.The people are the secondary owners or
stewards of the land and that if a member of the tribe ceases to work, he loses
his claim of ownership, and the land reverts to the beings of the spirit world
who are its true and primary owners.Under the concept of "trusteeship," the right to possess the
land does not only belong to the present generation but the future ones as
well.[99]

Customary law on land rests on the traditional belief that no one owns the
land except the gods and spirits, and that those who work the land are its mere
stewards.[100]Customary law has a strong preference for communal
ownership,which could either be
ownership by a group of individuals or families who are related by blood or by
marriage,[101] or ownership by residents
of the same locality who may not be related by blood or marriage.The system of communal ownership under
customary laws draws its meaning from the subsistence and highly collectivized
mode of economic production.The
Kalingas, for instance, who are engaged in team occupation like hunting,
foraging for forest products, and swidden farming found it natural that forest
areas, swidden farms, orchards, pasture and burial grounds should be
communally-owned.[102] For the Kalingas,
everybody has a common right to a common economic base.Thus, as a rule, rights and obligations to
the land are shared in common.

Although highly bent on
communal ownership, customary law on land also sanctions individual ownership.The
residential lots and terrace rice farms are governed by a limited system of
individual ownership.It is limited
because while the individual owner has the right to use and dispose of the
property, he does not possess all the rights of an exclusive and full owner as
defined under our Civil Code.[103]Under Kalinga customary law, the alienation of
individually-owned land is strongly discouraged except in marriage and
succession and except to meet sudden financial needs due to sickness, death in
the family, or loss of crops.[104] Moreover, and to be alienated
should first be offered to a clan-member before any village-member can purchase
it, and in no case may land be sold to a non-member of the ili.[105]

Land titles do not exist in
the indigenous peoples' economic and social system.The concept of individual land ownership under the civil law is
alien to them.Inherently colonial in
origin, our national land laws and governmental policies frown upon indigenous
claims to ancestral lands.Communal
ownership is looked upon as inferior, if not inexistent.[106]

III.THE IPRA IS A NOVEL PIECE OF LEGISLATION.

A.
The Legislative History of the IPRA

It was to address the
centuries-old neglect of the Philippine indigenous peoples that the Tenth Congress of the Philippines, by their
joint efforts, passed and approved R.A. No. 8371, the Indigenous Peoples
Rights Act (IPRA) of 1997.The law
was a consolidation of two Bills-- Senate Bill No. 1728 and House Bill No.
9125.

Principally sponsored by Senator
Juan M. Flavier,[107]Senate Bill No. 1728 was a consolidation of
four proposed measures referred to the Committees on Cultural Communities,
Environment and Natural Resources, Ways and Means, as well as Finance.It adopted almost en toto the comprehensive
version of Senate Bill Nos. 1476 and 1486 which was a result of six regional
consultations and one national consultation with indigenous peoples nationwide.[108]At the Second Regular Session of the Tenth Congress,
Senator Flavier, in his sponsorship speech, gave a background on the situation
of indigenous peoples in the Philippines, to wit:

"The Indigenous Cultural
Communities, including the Bangsa Moro, have long suffered from the dominance
and neglect of government controlled by the majority.Massive migration of their Christian brothers to their homeland
shrunk their territory and many of the tribal Filipinos were pushed to the
hinterlands.Resisting the intrusion,
dispossessed of their ancestral land and with the massive exploitation of their
natural resources by the elite among the migrant population, they became
marginalized.And the government has
been an indispensable party to this insidious conspiracy against the Indigenous
Cultural Communities (ICCs).It
organized and supported the resettlement of people to their ancestral land,
which was massive during the Commonwealth and early years of the Philippine
Republic.Pursuant to the Regalian
Doctrine first introduced to our system by Spain through the Royal Decree of 13
February 1894 or the Maura Law, the government passed laws to legitimize the
wholesale landgrabbing and provide for easy titling or grant of lands to
migrant homesteaders within the traditional areas of the ICCs."[109]

Senator
Flavier further declared:

"The IPs are the
offsprings and heirs of the peoples who have first inhabited and cared for the
land long before any central government was established.Their ancestors had territories over which
they ruled themselves and related with other tribes.These territories- the land- include people, their dwelling, the
mountains, the water, the air, plants, forest and the animals.This is their environment in its
totality.Their existence as indigenous
peoples is manifested in their own lives through political, economic,
socio-cultural and spiritual practices.The IPs culture is the living and irrefutable proof to this.

Their survival depends on
securing or acquiring land rights; asserting their rights to it; and depending
on it.Otherwise, IPs shall cease to
exist as distinct peoples."[110]

To recognize
the rights of the indigenous peoples effectively, Senator Flavier proposed a
bill based on two postulates:(1) the concept of native title; and (2) the principle of parens
patriae.

According to Senator Flavier,
"[w]hile our legal tradition subscribes to the Regalian Doctrine
reinstated in Section 2, Article XII of the 1987 Constitution," our
"decisional laws" and jurisprudence passed by the State have
"made exception to the doctrine." This exception was first laid
down in the case of Cariño v. Insular Government where:

"x x
x the court has recognized long occupancy of land by an indigenous member of
the cultural communities as one of private ownership, which, in legal concept,
is termed "native title." This ruling has not been overturned.In fact, it was affirmed in subsequent
cases."[111]

Following Cariño,
the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410,
P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim
Mindanao).These laws, explicitly or
implicitly, and liberally or restrictively, recognized "native title"
or "private right" and the existence of ancestral lands and
domains.Despite the passage of these
laws, however, Senator Flavier continued:

"x x
x the executive department of government since the American occupation has not
implemented the policy.In fact, it was
more honored in its breach than in its observance, its wanton disregard shown
during the period unto the Commonwealth and the early years of the Philippine
Republic when government organized and supported massive resettlement of the
people to the land of the ICCs."

Senate Bill No. 1728 seeks to
genuinely recognize the IPs right to own and possess their ancestral land.The bill was prepared also under the
principle of parens patriae inherent in the supreme power of the
State and deeply embedded in Philippine legal tradition.This principle mandates that persons
suffering from serious disadvantage or handicap, which places them in a
position of actual inequality in their relation or transaction with others, are
entitled to the protection of the State.

Senate Bill No. 1728 was
passed on Third Reading by twenty-one (21) Senators voting in favor and none
against, with no abstention.[112]

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the
Committee on Cultural Communities.It was
originally authored and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.[113]

Rep. Andolana's sponsorhip
speech reads as follows:

"This Representation, as
early as in the 8th Congress, filed a bill of similar implications that would
promote, recognize the rights of indigenous cultural communities within the
framework of national unity and development.

Apart from this, Mr. Speaker,
is our obligation, the government's obligation to assure and ascertain that
these rights shall be well-preserved and the cultural traditions as well as the
indigenous laws that remained long before this Republic was established shall
be preserved and promoted.There is a
need, Mr. Speaker, to look into these matters seriously and early approval of
the substitute bill shall bring into reality the aspirations, the hope and the
dreams of more than 12 million Filipinos that they be considered in the
mainstream of the Philippine society as we fashion for the year 2000." [114]

Rep. Andolana stressed that
H.B. No. 9125 is based on the policy of preservation as mandated in the
Constitution.He also emphasized that
the rights of IPs to their land was enunciated in Cariño v. Insular
Governmentwhich recognized the fact that they had vested rights prior
to the establishment of the Spanish and American regimes.[115]

After exhaustive
interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.

IV.THE PROVISIONS OF THE IPRA DO NOT
CONTRAVENE THE CONSTITUTION.

A.Ancestral Domains and Ancestral Lands are
the Private Property of Indigenous Peoples and Do Not Constitute Part of the
Land of the Public Domain.

The IPRA grants to ICCs/IPs
a distinct kind of ownership over ancestral domains and ancestral lands.Ancestral
lands are not the same as ancestral domains.These are defined in Section 3 [a] and [b] of the Indigenous Peoples
Right Act, viz:

"Sec. 3 a)
Ancestral Domains. -- Subject to
Section 56 hereof, refer to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and natural resources therein,
held under a claim of ownership, occupied or possessed by ICCs/IPs by
themselves or through their ancestors, communally or individually since time
immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by government
and private individuals/corporations, and which are necessary to ensure their
economic, social and cultural welfare.It shall include ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies
of water, mineral and other natural resources, and lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally had access
to for their subsistence and traditional activities, particularly the home
ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;

b) Ancestral Lands.-- Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans who are
members of the ICCs/IPs since time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or traditional group
ownership, continuously, to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth, or as a consequence of
government projects and other voluntary dealings entered into by government and
private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree
lots."

Ancestral domains are all areas belonging to ICCs/IPs held under a
claim of ownership, occupied or possessed by ICCs/IPs by themselves or through
their ancestors, communally or individually since time immemorial, continuously
until the present, except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings with government and/or private
individuals or corporations.Ancestral
domains comprise lands, inland waters, coastal areas, and natural resources
therein and includes ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable or not,
hunting grounds, burial grounds, worship areas, bodies of water, mineral and other
natural resources.They also
include lands which may no longer be exclusively occupied by ICCs/IPs but from
which they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.[116]

Ancestral lands are lands held by the ICCs/IPs under the same
conditions as ancestral domains except that these are limited to lands and that
these lands are not merely occupied and possessed but are also utilized by the
ICCs/IPs under claims of individual or traditional group ownership.These lands include but are not limited to
residential lots, rice terraces or paddies, private forests, swidden farms and
tree lots.[117]

The procedures for claiming
ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then
Secretary of the Department of Environment and Natural Resources (DENR) Angel
Alcala.[118]DAO No. 2 allowed the delineation of ancestral
domains by special task forces and ensured the issuance of Certificates of
Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims
(CADC's) to IPs.

The identification and
delineation of these ancestral domains and lands is a power conferred by the
IPRA on the National Commission on Indigenous Peoples (NCIP).[119]The guiding principle in identification and
delineation is self-delineation.[120] This means that the
ICCs/IPs have a decisive role in determining the boundaries of their domains
and in all the activities pertinent thereto.[121]

The procedure for the
delineation and recognition of ancestral domains is set forth in
Sections 51 and 52 of the IPRA.The
identification, delineation and certification of ancestral lands is in
Section 53 of said law.

Upon due application and
compliance with the procedure provided under the law and upon finding by the
NCIP that the application is meritorious, the NCIP shall issue a Certificate of
Ancestral Domain Title (CADT) in the name of the community concerned.[122]The allocation of lands within the
ancestral domain to any individual or indigenous corporate (family or clan)
claimants is left to the ICCs/IPs concerned to decide in accordance with
customs and traditions.[123] With respect to ancestral lands
outside the ancestral domain, the NCIP issues a Certificate of
Ancestral Land Title (CALT).[124]

CADT's and CALT's issued under
the IPRA shall be registered by the NCIP before the Register of Deeds in the
place where the property is situated.[125]

(1)Right to Ancestral Domains
and Ancestral Lands:How Acquired

The rights of the ICCs/IPs to
their ancestral domains and ancestral lands may be acquired in two modes:(1) by native title over both
ancestral lands and domains; or (2) by torrens title under the Public
Land Act and the Land Registration Act with respect to ancestral lands only.

(2)The Concept of Native
Title

Native title is defined as:

"Sec. 3 [l]. Native
Title-- refers to pre-conquest rights to lands and domains which, as far
back as memory reaches, have been held under a claim of private
ownership by ICCs/IPs, have never been public lands and are thus indisputably
presumed to have been held that way since before the Spanish
Conquest."[126]

Native
title refers to ICCs/IPs'
preconquest rights to lands and domains held under a claim of private ownership
as far back as memory reaches.These
lands are deemed never to have been public lands and are indisputably presumed
to have been held that way since before the Spanish Conquest.The rights of ICCs/IPs to their ancestral domains
(which also include ancestral lands) by virtue of native title shall be
recognized and respected.[127]Formal recognition, when solicited by ICCs/IPs
concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT),
which shall recognize the title of the concerned ICCs/IPs over the territories
identified and delineated.[128]

Like a torrens title, a CADT
is evidence of private ownership of land by native title.Native title, however, is a right of
private ownership peculiarly granted to ICCs/IPs over their ancestral lands and
domains.The IPRA categorically
declares ancestral lands and domains held by native title as never to have
been public land.Domains and lands
held under native title are, therefore, indisputably presumed to have never
been public lands and are private.

The concept of native title in
the IPRA was taken from the 1909 case of Cariño v. Insular Government.[130]Cariño firmly established a concept
of private land title that existed irrespective of any royal grant from the
State.

In 1903, Don Mateo Cariño, an
Ibaloi, sought to register with the land registration court 146 hectares of
land in Baguio Municipality, Benguet Province.He claimed that this land had been possessed and occupied by his
ancestors since time immemorial; that his grandfather built fences around the
property for the holding of cattle and that his father cultivated some parts of
the land.Cariño inherited the land in
accordance with Igorot custom.He tried
to have the land adjusted under the Spanish land laws, but no document issued
from the Spanish Crown.[131] In 1901, Cariño obtained a
possessory title to the land under the Spanish Mortgage Law.[132] The North American
colonial government, however, ignored his possessory title and built a public
road on the land prompting him to seek a Torrens title to his property in the
land registration court.While his
petition was pending, a U.S. military reservation[133] was proclaimed over his
land and, shortly thereafter, a military detachment was detailed on the
property with orders to keep cattle and trespassers, including Cariño, off the
land.[134]

In 1904, the land registration
court granted Cariño's application for absolute ownership to the land.Both the Government of the Philippine
Islands and the U.S. Government appealed to the C.F.I. of Benguet which
reversed the land registration court and dismissed Cariño's application.The Philippine Supreme Court[135]affirmed the C.F.I. by applying the Valenton
ruling.Cariño took the case to the
U.S. Supreme Court.[136] On one hand, the
Philippine government invoked the Regalian doctrine and contended that Cariño
failed to comply with the provisions of the Royal Decree of June 25, 1880,
which required registration of land claims within a limited period of
time.Cariño, on the other, asserted
that he was the absolute owner of the land jure gentium, and that the
land never formed part of the public domain.

In a unanimous decision
written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:

"It is true that Spain,
in its earlier decrees, embodied the universal feudal theory that all lands
were held from the Crown, and perhaps the general attitude of conquering
nations toward people not recognized as entitled to the treatment accorded to
those in the same zone of civilization with themselves.It is true, also, that in legal theory,
sovereignty is absolute, and that, as against foreign nations, the United States
may assert, as Spain asserted, absolute power.But it does not follow that, as against the inhabitants of the
Philippines, the United States asserts that Spain had such power.When theory is left on one side, sovereignty
is a question of strength, and may vary in degree.How far a new sovereign shall insist upon the theoretical
relation of the subjects to the head in the past, and how far it shall
recognize actual facts, are matters for it to decide."[137]

The U.S. Supreme Court noted that
it need not accept Spanish doctrines.The choice was with the new colonizer.Ultimately, the matter had to be decided under U.S. law.

The Cariño decision
largely rested on the North American constitutionalist's concept of "due
process" as well as the pronounced policy "to do justice to the
natives."[138]It was based on the strong mandate extended to the
Islands via the Philippine Bill of 1902 that "No law shall be enacted in
said islands which shall deprive any person of life, liberty, or property
without due process of law, or deny to any person therein the equal protection
of the laws." The court declared:

"The acquisition of the
Philippines was not like the settlement of the white race in the United
States.Whatever consideration may have
been shown to the North American Indians, the dominant purpose of the whites in
America was to occupy land.It is
obvious that, however stated, the reason for our taking over the Philippines
was different.No one, we suppose,
would deny that, so far as consistent with paramount necessities, our first
object in the internal administration of the islands is to do justice to the
natives, not to exploit their country for private gain.By the Organic Act of July 1, 1902, chapter
1369, section 12 (32 Statutes at Large, 691), all the property and rights
acquired there by the United States are to be administered 'for the benefit of
the inhabitants thereof.'It is
reasonable to suppose that the attitude thus assumed by the United States with
regard to what was unquestionably its own is also its attitude in deciding what
it will claim for its own.The same
statute made a bill of rights, embodying the safeguards of the Constitution,
and, like the Constitution, extends those safeguards to all.It provides that 'no law shall be enacted in
said islands which shall deprive any person of life, liberty, or property
without due process of law, or deny to any person therein the equal protection
of the laws.' In the light of the declaration that we have quoted from section
12, it is hard to believe that the United States was ready to declare in the
next breath that "any person" did not embrace the inhabitants of
Benguet, or that it meant by "property" only that which had become
such by ceremonies of which presumably a large part of the inhabitants never
had heard, and that it proposed to treat as public land what they, by native
custom and by long association,-- of the profoundest factors in human
thought,-- regarded as their own."[139]

The Court
went further:

"[E]very
presumption is and ought to be against the government in a case like the
present. It might, perhaps, be
proper and sufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of private ownership,
it will be presumed to have been held in the same way from before the Spanish conquest,
and never to have been public land.Certainly in a case like this, if there is doubt or ambiguity in the
Spanish law, we ought to give the applicant the benefit of the doubt."[140]

The court
thus laid down the presumption of a certain title held (1) as far back
as testimony or memory went, and (2) under a claim of private ownership.Land held by this title is presumed to
"never have been public land."

Against this presumption, the
U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904 decision ofValenton v. Murciano.The
U.S. Supreme Court found no proof that the Spanish decrees did not honor
native title.On the contrary, the
decrees discussed in Valenton appeared to recognize that the
natives owned some land, irrespective of any royal grant.The Regalian doctrine declared in the
preamble of the Recopilacion was all "theory and discourse"
and it was observed that titles were admitted to exist beyond the powers of the
Crown, viz:

"If the applicant's case is
to be tried by the law of Spain, we do not discover such clear proof that it
was bad by that law as to satisfy us that he does not own the land.To begin with, the older decrees and laws
cited by the counsel for the plaintiff in error seem to indicate pretty clearly
that the natives were recognized as owning some lands, irrespective of any
royal grant.In other words, Spain did not assume to
convert all the native inhabitants of the Philippines into trespassers or even
into tenants at will.For instance, Book
4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias,
cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine 537,
while it commands viceroys and others, when it seems proper, to call for the
exhibition of grants, directs them to confirm those who hold by good grants or justa
prescripcion.It is true that it
begins by the characteristic assertion of feudal overlordship and the origin of
all titles in the King or his predecessors.That was theory and discourse.The
fact was that titles were admitted to exist that owed nothing to the powers of
Spain beyond this recognition in their books." (Emphasis supplied).[141]

The court further stated that the
Spanish "adjustment" proceedings never held sway over unconquered
territories.The wording of the Spanish
laws were not framed in a manner as to convey to the natives that failure to
register what to them has always been their own would mean loss of such
land.The registration requirement was "not
to confer title, but simply to establish it;" it was "not calculated
to convey to the mind of an Igorot chief the notion that ancient family
possessions were in danger, if he had read every word of it."

By recognizing this kind of
title, the court clearly repudiated the doctrine of Valenton.It was frank enough, however, to admit the
possibility that the applicant might have been deprived of his land under
Spanish law because of the inherent ambiguity of the decrees and concomitantly,
the various interpretations which may be given them.But precisely because of the ambiguity and of the strong
"due process mandate" of the Constitution, the court validated this
kind of title.[142]This title was sufficient, even without government
administrative action, and entitled the holder to a Torrens certificate.Justice Holmes explained:

"It will be perceived that the
rights of the applicant under the Spanish law present a problem not without
difficulties for courts of a legal tradition.We have deemed it proper on that account to notice the possible effect
of the change of sovereignty and the act of Congress establishing the
fundamental principles now to be observed.Upon a consideration of the whole case we are of the opinion that law and
justice require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom he
lived, was his property, through a refined interpretation of an almost
forgotten law of Spain."[143]

Thus, the court ruled in favor
of Cariño and ordered the registration of the 148 hectares in Baguio
Municipality in his name.[144]

Examining Cariño
closer, the U.S. Supreme Court did not categorically refer to the title it
upheld as "native title." It simply said:

"The Province of Benguet
was inhabited by a tribe that the Solicitor-General, in his argument,
characterized as a savage tribe that never was brought under the civil or
military government of the Spanish Crown.It seems probable, if not certain, that the Spanish officials would not
have granted to anyone in that province the registration to which formerly the
plaintiff was entitled by the Spanish Laws, and which would have made his title
beyond question good.Whatever may have been the technical position
of Spain it does not follow that, in the view of the United States, he had lost
all rights and was a mere trespasser when the present government seized his
land.The argument to that effect seems
to amount to a denial of native titles through an important part
of the Island of Luzon, at least, for the want of ceremonies which the
Spaniards would not have permitted and had not the power to enforce."[145]

This is
the only instance when Justice Holmes used the term "native title" in
the entire length of the Cariño decision.It is observed that the widespread use of
the term "native title" may be traced to Professor Owen James Lynch,
Jr., a Visiting Professor at the University of the Philippines College of Law
from the Yale University Law School.In
1982, Prof. Lynch published an article in the Philippine Law Journal entitled
Native Title, Private Right and Tribal Land Law.[146]This article was made after Professor Lynch visited
over thirty tribal communities throughout the country and studied the origin and
development of Philippine land laws.[147] He discussed Cariño
extensively and used the term "native title" to refer to Cariño's
title as discussed and upheld by the U.S. Supreme Court in said case.

(b) Indian
Title

In a footnote in the same
article, Professor Lynch stated that the concept of "native title" as
defined by Justice Holmes in Cariño "is conceptually similar to
"aboriginal title" of the American Indians.[148]This is not surprising, according to Prof. Lynch,
considering that during the American regime, government policy towards ICCs/IPs
was consistently made in reference to native Americans.[149] This was clearly
demonstrated in the case of Rubi v. Provincial Board of Mindoro.[150]

In Rubi, the
Provincial Board of Mindoro adopted a Resolution authorizing the provincial
governor to remove the Mangyans from their domains and place them in a
permanent reservation in Sitio Tigbao, Lake Naujan.Any Mangyan who refused to comply was to be imprisoned.Rubi and some Mangyans, including one who
was imprisoned for trying to escape from the reservation, filed for habeas
corpus claiming deprivation of liberty under the Board Resolution.This Court denied the petition on the ground
of police power.It upheld government
policy promoting the idea that a permanent settlement was the only successful
method for educating the Mangyans, introducing civilized customs, improving
their health and morals, and protecting the public forests in which they
roamed.[151]Speaking through Justice Malcolm, the court said:

"Reference was made in the
President's instructions to the Commission to the policy adopted by the United
States for the Indian Tribes.The
methods followed by the Government of the Philippine Islands in its dealings
with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings
with the Indian tribes.Valuable
lessons, it is insisted, can be derived by an investigation of the
American-Indian policy.

From the beginning of the United States,
and even before, the Indians have been treated as "in a state of
pupilage." The recognized relation between the Government of the United
States and the Indians may be described as that of guardian and ward.It is for the Congress to determine when and
how the guardianship shall be terminated.The Indians are always subject to the plenary authority of the United
States.[152]

x xx.

As to the second point, the facts
in the Standing Bear case and the Rubi case are not exactly identical.But even admitting similarity of facts, yet
it is known to all that Indian reservations do exist in the United States, that
Indians have been taken from different parts of the country and placed on these
reservations, without any previous consultation as to their own wishes, and
that, when once so located, they have been made to remain on the reservation
for their own good and for the general good of the country.If any lesson can be drawn from the Indian
policy of the United States, it is that the determination of this policy is for
the legislative and executive branches of the government and that when once so
decided upon, the courts should not interfere to upset a carefully planned
governmental system.Perhaps, just as
many forceful reasons exist for the segregation of the Manguianes in Mindoro as
existed for the segregation of the different Indian tribes in the United
States."[153]

Rubi applied the concept of Indian land grants or
reservations in the Philippines.An
Indian reservation is a part of the public domain set apart by proper authority
for the use and occupation of a tribe or tribes of Indians.[154]It may be set apart by an act of Congress, by treaty,
or by executive order, but it cannot be established by custom and prescription.[155]

Indian title to land, however,
is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."[156]The aboriginal right of possession depends on the
actual occupancy of the lands in question by the tribe or nation as their ancestral
home, in the sense that such lands constitute definable territory occupied
exclusively by the particular tribe or nation.[157] It is a right which exists
apart from any treaty, statute, or other governmental action, although in
numerous instances treaties have been negotiated with Indian tribes,
recognizing their aboriginal possession and delimiting their occupancy rights
or settling and adjusting their boundaries.[158]

American jurisprudence
recognizes the Indians' or native Americans' rights to land they have held and
occupied before the "discovery" of the Americas by the
Europeans.The earliest definitive
statement by the U.S. Supreme Court on the nature of aboriginal title was made
in 1823 in Johnson & Graham's Lessee v. M'Intosh.[159]

In Johnson, the plaintiffs
claimed the land in question under two (2) grants made by the chiefs of two (2)
Indian tribes.The U.S. Supreme Court
refused to recognize this conveyance, the plaintiffs being private persons.The only conveyance that was recognized was
that made by the Indians to the government of the European discoverer.Speaking for the court, Chief Justice
Marshall pointed out that the potentates of the old world believed that they
had made ample compensation to the inhabitants of the new world by bestowing civilization
and Christianity upon them; but in addition, said the court, they found it
necessary, in order to avoid conflicting settlements and consequent war, to
establish the principle that discovery gives title to the government by
whose subjects, or by whose authority, the discovery was made, against all
other European governments, which title might be consummated by possession.[160]The exclusion of all other Europeans gave to the
nation making the discovery the sole right of acquiring the soil from the natives
and establishing settlements upon it.As regards the natives, the court further stated that:

"Those relations which were to
exist between the discoverer and the natives were to be regulated by
themselves.The rights thus acquired
being exclusive, no other power could interpose between them.

In the establishment of these
relations, the rights of the original inhabitants were, in no instance,
entirely disregarded; but were necessarily, to a considerable extent,
impaired.They were admitted to be
the rightful occupants of the soil, with a legal as well as just claim to
retain possession of it, and to use itaccording to their own
discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil at
their own will, to whomsoever they pleased, was denied by the fundamental
principle that discovery gave exclusive title to those who made it.

While the different nations of
Europe respected the right of the natives as occupants, they asserted the
ultimate dominion to be in themselves; and claimed and exercised, as a
consequence of this ultimate dominion, a power to grant the soil, while yet in
possession of the natives.These grants
have been understood by all to convey a title to the grantees, subject only to
the Indian right of occupancy."[161]

Thus, the discoverer of new
territory was deemed to have obtained the exclusive rightto
acquire Indian land and extinguish Indian titles.Only to the discoverer-- whether to England, France, Spain or
Holland-- did this right belong and not to any other nation or private
person.The mere acquisition of the
right nonetheless did not extinguish Indian claims to land.Rather, until the discoverer, by purchase or
conquest, exercised its right, the concerned Indians were recognized as the
"rightful occupants of the soil, with a legal as well as just claim to
retain possession of it." Grants made by the discoverer to her subjects of
lands occupied by the Indians were held to convey a title to the grantees,
subject only to the Indian right of occupancy.Once the discoverer purchased the land from the Indians or conquered
them, it was only then that the discoverer gained an absolute title
unrestricted by Indian rights.

The court concluded, in essence,
that a grant of Indian lands by Indians could not convey a title paramount to
the title of the United States itself to other parties, saying:

"It has never been contended
that the Indian title amounted to nothing.Their right of possession has never been questioned.The claim of government extends to the
complete ultimate title, charged with this right of possession, and to the
exclusive power of acquiring that right."[162]

It has been said that the history
of America, from its discovery to the present day, proves the universal
recognition of this principle.[163]

The Johnson
doctrine was a compromise.It protected
Indian rights and their native lands without having to invalidate conveyances
made by the government to many U.S. citizens.[164]

Johnson was reiterated in the case of Worcester v.
Georgia.[165]In this case, the State of Georgia enacted a law
requiring all white persons residing within the Cherokee nation to obtain a
license or permit from the Governor of Georgia; and any violation of the law
was deemed a high misdemeanor.The
plaintiffs, who were white missionaries, did not obtain said license and were
thus charged with a violation of the Act.

The U.S. Supreme Court declared
the Act as unconstitutional for interfering with the treaties established
between the United States and the Cherokee nation as well as the Acts of
Congress regulating intercourse with them.It characterized the relationship between the United States government
and the Indians as:

"The Indian nations were, from
their situation, necessarily dependent on some foreign potentate for the supply
of their essential wants, and for their protection from lawless and injurious
intrusions into their country.That
power was naturally termed their protector.They had been arranged under the protection of Great Britain; but the
extinguishment of the British power in their neighborhood, and the
establishment of that of the United States in its place, led naturally to the
declaration, on the part of the Cherokees, that they were under the protection
of the United States, and of no other power.They assumed the relation with the United States which had before
subsisted with Great Britain.

This relation was that of a nation
claiming and receiving the protection of one more powerful, not that of
individuals abandoning their national character, and submitting as subjects to
the laws of a master."[166]

It was the policy of the U.S.
government to treat the Indians as nations with distinct territorial boundaries
and recognize their right of occupancy over all the lands within their
domains.Thus:

"From the commencement of our
government Congress has passed acts to regulate trade and intercourse with the
Indians; which treat them as nations, respect their rights, and manifest a firm
purpose to afford that protection which treaties stipulate.All these acts, and especially that of 1802,
which is still in force, manifestly consider the several Indian nations as
distinct political communities, having territorial boundaries, within which
their authority is exclusive, and having a right to all the lands within those
boundaries, which is not only acknowledged, but guaranteed by the United
States.

xxx.

"The Indian nations had
always been considered as distinct, independent political communities, retaining
their original natural rights, as the undisputed possessors of the soil from
time immemorial, with the single
exception of that imposed by irresistible power, which excluded them from
intercourse with any other European potentate than the first discoverer of the
coast of the particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as on the Indians.The very term "nation," so
generally applied to them, means "a people distinct from others." xxx.[167]

The Cherokee nation, then, is a
distinct community, occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force, and which the
citizens of Georgia have no right to enter but with the assent of the Cherokees
themselves or in conformity with treaties and with the acts of Congress.The whole intercourse between the United
States and this nation is, by our Constitution and laws, vested in the
government of the United States."[168]

The discovery of the American
continent gave title to the government of the discoverer as against all other
European governments.Designated as the
naked fee,[169]this title was to be consummated by possession and
was subject to the Indian title of occupancy.The discoverer acknowledged the Indians' legal and just claim to retain
possession of the land, the Indians being the original inhabitants of the
land.The discoverer nonetheless
asserted the exclusive right to acquire the Indians' land-- either by purchase,
"defensive" conquest, or cession-- and in so doing, extinguish the
Indian title.Only the discoverer could
extinguish Indian title because it alone asserted ultimate dominion in itself.Thus, while the different nations of Europe
respected the rights of the natives as occupants, they all asserted the
ultimate dominion and title to be in themselves.[170]

As early as the 19th century,
it became accepted doctrine that although fee title to the lands occupied by
the Indians when the colonists arrived became vested in the sovereign-- first
the discovering European nation and later the original 13 States and the United
States-- a right of occupancy in the Indian tribes was nevertheless recognized.The Federal
Government continued the policy of respecting the Indian right of occupancy,
sometimes called Indian title, which it accorded the protection of complete
ownership.[171]But this aboriginal Indian interest simply
constitutes "permission" from the whites to occupy the land, and
means mere possession not specifically recognized as ownership by Congress.[172] It is clear that this
right of occupancy based upon aboriginal possession is not a property right.[173] It is vulnerable to
affirmative action by the federal government who, as sovereign, possessed
exclusive power to extinguish the right of occupancy at will.[174]Thus, aboriginal title
is not the same as legal title. Aboriginal title rests on actual, exclusive
and continuous use and occupancy for a long time.[175] It entails that land owned
by Indian title must be used within the tribe, subject to its laws and customs,
and cannot be sold to another sovereign government nor to any citizen.[176] Such title as Indians have
to possess and occupy land is in the tribe, and not in the individual Indian;
the right of individual Indians to share in the tribal property usually depends
upon tribal membership, the property of the tribe generally being held in
communal ownership.[177]

As a rule, Indian lands are not
included in the term "public lands," which is ordinarily used to
designate such lands as are subject to sale or other disposal under general
laws.[178] Indian land which has been
abandoned is deemed to fall into the public domain.[179] On the other hand, an Indian
reservation is a part of the public domain set apart for the use and occupation
of a tribe of Indians.[180] Once set apart by proper authority,
the reservation ceases to be public land, and until the Indian title is
extinguished, no one but Congress can initiate any preferential right on, or
restrict the nation's power to dispose of, them.[181]

The American judiciary
struggled for more than 200 years with the ancestral land claims of indigenous
Americans.[182] And two things are
clear.First, aboriginal title
is recognized.Second,
indigenous property systems are also recognized.From a legal point of view, certain benefits can be drawn from a
comparison of Philippine IPs to native Americans.[183] Despite the similarities
between native title and aboriginal title, however, there are at present some
misgivings on whether jurisprudence on American Indians may be cited
authoritatively in the Philippines.The
U.S. recognizes the possessory rights of the Indians over their land; title to
the land, however, is deemed to have passed to the U.S. as successor of the discoverer.The aboriginal title of ownership is not
specifically recognized as ownership by action authorized by Congress.[184] The protection of
aboriginal title merely guards against encroachment by persons other than the
Federal Government.[185] Although there are
criticisms against the refusal to recognize the native Americans' ownership of
these lands,[186] the power of the State to
extinguish these titles has remained firmly entrenched.[187]

Under the IPRA, the Philippine
State is not barred form asserting sovereignty over the ancestral domains and
ancestral lands.[188] The IPRA, however, is
still in its infancy and any similarities between its application in the
Philippines vis-à-vis American Jurisprudence on aboriginal title will depend on
the peculiar facts of each case.

(c) Why
the Cariño doctrine is unique

In the Philippines, the concept
of native title first upheld in Cariño and enshrined in the IPRA
grants ownership, albeit in limited form, of the land to the ICCs/IPs.Native title presumes that the land is
private and was never public.Cariño
is the only case that specifically and categorically recognizes native
title.The long line of cases citing Cariño
did not touch on native title and the private character of ancestral domains
and lands.Cariño was cited by
the succeeding cases to support the concept of acquisitive prescription under
the Public Land Act which is a different matter altogether.Under the Public Land Act, land sought to be
registered must be public agricultural land.When the conditions specified in Section 48 [b] of the Public
Land Act are complied with, the possessor of the land is deemed to have
acquired, by operation of law, a right to a grant of the land.[189]The land ceases to be part of the public domain,[190]ipso jure,[191] and is converted to
private property by the mere lapse or completion of the prescribed statutory
period.

It was only in the case of Oh
Cho v. Director of Lands[192]that the court declared that the rule that all lands that
were not acquired from the government, either by purchase or grant, belong to
the public domain has an exception.This exception would be any land that should have been in the possession
of an occupant and of his predecessors-in-interest since time immemorial.It is this kind of possession that would
justify the presumption that the land had never been part of the public domain
or that it had been private property even before the Spanish conquest.[193]Oh Cho,
however, was decided under the provisions of the Public Land Act and Cariño
was cited to support the applicant's claim of acquisitive prescription under
the said Act.

All these years, Cariño
had been quoted out of context simply to justify long, continuous, open and
adverse possession in the concept of owner of public agricultural land.It is this long, continuous, open and
adverse possession in the concept of owner of thirty years both for ordinary
citizens[194]and members of the national cultural minorities[195] that converts the land
from public into private and entitles the registrant to a torrens certificate
of title.

(3) The Option of Securing
a Torrens Title to the Ancestral Land Indicates that the Land is Private.

The private character of
ancestral lands and domains as laid down in the IPRA is further strengthened
by the option given to individual ICCs/IPs over their individually-owned ancestral
lands.For purposes of
registration under the Public Land Act and the Land Registration Act, the IPRA
expressly converts ancestral land into public agricultural land which may be
disposed of by the State.The necessary
implication is that ancestral land is private.It, however, has to be first converted to public
agricultural land simply for registration purposes.To wit:

"Sec. 12.Option to Secure Certificate of Title Under
Commonwealth Act 141, as amended, or the Land Registration Act 496-- Individual
members of cultural communities, with respect to their individually-owned
ancestral lands who, by themselves or through their predecessors-in-interest,
have been in continuous possession and occupation of the same in the concept of
owner since time immemorial or for a period of not less than thirty (30) years
immediately preceding the approval of this Act and uncontested by the members
of the same ICCs/IPs shall have the option to secure title to their ancestral
lands under the provisions of Commonwealth Act 141, as amended, or the Land
Registration Act 496.

For this purpose, said
individually-owned ancestral lands, which are agricultural in character and
actually used for agricultural, residential, pasture, and tree farming
purposes, including those with a slope of eighteen percent (18%) or more, are
hereby classified as alienable and disposable agricultural lands.

The option granted under this
section shall be exercised within twenty (20) years from the approval of this
Act."[196]

ICCs/IPs
are given the option to secure a torrens certificate of title over their
individually-owned ancestral lands.This option is limited to ancestral lands only, not domains, and
such lands must be individually, not communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs
who, by themselves or through their predecessors-in-interest, have been in
continuous possession and occupation of the same in the concept of owner since
time immemorial[197]or for a period of not less than 30 years, which claims are
uncontested by the members of the same ICCs/IPs, may be registered under C.A.
141, otherwise known as the Public Land Act, or Act 496, the Land Registration
Act.For purposes of registration, the
individually-owned ancestral lands are classified as alienable and disposable
agricultural lands of the public domain, provided, they are agricultural in
character and are actually used for agricultural, residential, pasture and tree
farming purposes.These lands shall be
classified as public agricultural lands regardless of whether they have a slope
of 18% or more.

The classification of ancestral
land as public agricultural land is in compliance with the requirements of the
Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act,
deals specifically with lands of the public domain.[198]Its provisions apply to those lands "declared
open to disposition or concession" x x x "which have not been
reserved for public or quasi-public purposes, nor appropriated by the
Government, nor in any manner become private property, nor those on which a
private right authorized and recognized by this Act or any other valid law
xxx or which having been reserved or appropriated, have ceased to be
so."[199] Act 496, the Land
Registration Act, allows registration only of private lands and public
agricultural lands.Since ancestral
domains and lands are private, if the ICC/IP wants to avail of the benefits of
C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless
of whether the land has a slope of eighteen per cent (18%) or over,[200] from private to public
agricultural land for proper disposition.

The option to register land under
the Public Land Act and the Land Registration Act has nonetheless a limited
period.This option must be exercised
within twenty (20) years from October 29, 1997, the date of approval of the
IPRA.

Thus, ancestral lands and
ancestral domains are not part of the lands of the public domain.They are private and belong to the
ICCs/IPs.Section 3 of Article XII on National Economy and Patrimony of the 1987
Constitution classifies lands of the public domain into four categories: (a)
agricultural, (b) forest or timber, (c) mineral lands, and (d) national
parks.Section5 of the same
ArticleXII mentions ancestral lands and ancestral domains but it
does not classify them under any of the said four categories.To classify them as public lands under
any one of the four classes will render the entire IPRA law a nullity.The spirit of the IPRA lies in the distinct
concept of ancestral domains and ancestral lands.The IPRA addresses the major problem of the ICCs/IPs which is
loss of land.Land and space are of
vital concern in terms of sheer survival of the ICCs/IPs.[201]

The 1987 Constitution mandates
the State to "protect the rights of indigenous cultural communities to
their ancestral lands" and that "Congress provide for the
applicability of customary laws x x x in determining the ownership and extent
of ancestral domain."[202] It is the recognition of the
ICCs/IPs distinct rights of ownership over their ancestral domains and lands
that breathes life into this constitutional mandate.

B.The right of ownership and possession by the ICCs/IPs of their
ancestral domains is a limited form of ownership and does not include the right
to alienate the same.

Registration under the Public
Land Act and Land Registration Act recognizes the concept of ownership under
the civil law.This ownership is
based on adverse possession for a specified period, and harkens to Section 44 of
the Public Land Act on administrative legalization (free patent) of imperfect
or incomplete titles and Section 48 (b) and (c) of the same Act on the judicial
confirmation of imperfect or incomplete titles.Thus:

"Sec. 44.Any natural-born citizen of the Philippines
who is not the owner of more than twenty-four hectares and who since July
fourth, 1926 or prior thereto, has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest, a tract or tracts of
agricultural public lands subject to disposition, or who shall have paid the
real estate tax thereon while the same has not been occupied by any person
shall be entitled, under the provisions of this chapter, to have a free patent
issued to him for such tract or tracts of such land not to exceed twenty-four
hectares.

A member of the national
cultural minorities who has
continuously occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of land, whether disposable or not
since July 4, 1955, shall be entitled to the right granted in the preceding
paragraph of this section: Provided, That at the time he files his free
patent application he is not the owner of any real property secured or disposable
under the provision of the Public Land Law.[203]

x x x.

"Sec. 48.The following described citizens of the
Philippines, occupying lands of the public domain or claiming to own any such
lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the
land is located for confirmation of their claims and the issuance of a
certificate of title therefor, under the Land Registration Act, to wit:

(a) [perfection of Spanish titles]
xxx.

(b) Those who by themselves or
through their predecessors-in-interest have been in open, continuous,
exclusive, and notorious possession and occupation of agricultural lands of the
public domain, under a bona fide claim of acquisition or ownership, for at
least thirty years immediately preceding the filing of the application for
confirmation of title except when prevented by war or force majeure.These shall be conclusively presumed to have
performed all the conditions essential to a Government grant and shall be
entitled to a certificate of title under the provisions of this Chapter.

(c) Members of the national
cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to
agriculture, whether disposable or not, under a bona fide claim of ownership
for at least 30 years shall be entitled to the rights granted in sub-section
(b) hereof."[204]

Registration under the foregoing
provisions presumes that the land was originally public agricultural land but
because of adverse possession since July 4, 1955 (free patent) or at least
thirty years (judicial confirmation), the land has become private.Open, adverse, public and continuous
possession is sufficient, provided, the possessor makes proper application
therefor.The possession has to be
confirmed judicially or administratively after which a torrens title is issued.

A torrens title recognizes the
owner whose name appears in the certificate as entitled to all the rights of
ownership under the civil law.The Civil Code of the Philippines defines ownership in Articles 427, 428
and 429.This concept is based on Roman
Law which the Spaniards introduced to the Philippines through the Civil Code of
1889.Ownership, under Roman Law, may
be exercised over things or rights.It
primarily includes the right of the owner to enjoy and dispose of the thing
owned.And the right to enjoy and
dispose of the thing includes the right to receive from the thing what it
produces,[205] the right to consume the thing by
its use,[206] the right to alienate, encumber,
transform or even destroy the thing owned,[207] and the right to exclude from the
possession of the thing owned by any other person to whom the owner has not
transmitted such thing.[208]

1.The Indigenous Concept of Ownership and Customary Law.

Ownership of ancestral domains by
native title does not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the indigenous
concept of ownership of the ICCs/IPs over their ancestral domain.Thus:

"Sec. 5. Indigenous
concept of ownership.- Indigenous concept of ownership sustains the view
that ancestral domains and all resources found therein shall serve as the
material bases of their cultural integrity.The indigenous concept of ownership generally holds that ancestral
domains are the ICCs/IPs private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed.It likewise covers sustainable traditional
resource rights."

The right of ownership and
possession of the ICCs/IPs to their ancestral domains is held under the
indigenous concept of ownership.This
concept maintains the view that ancestral domains are the ICCs/IPs private but
community property.It is private
simply because it is not part of the public domain.But its private character ends there.The ancestral domain is owned in common by the ICCs/IPs and not
by one particular person.The IPRA itself provides that areas within
the ancestral domains, whether delineated or not, are presumed to be communally
held.[209]These communal rights, however,
are not exactly the same as co-ownership rights under the Civil Code.[210]Co-ownership gives any co-owner the right to demand
partition of the property held in common.The Civil Code expressly provides that "[n]o co-owner shall be
obliged to remain in the co-ownership." Each co-owner may demand at any
time the partition of the thing in common, insofar as his share is concerned.[211] To allow such a right over
ancestral domains may be destructive not only of customary law of the community
but of the very community itself.[212]

Communal rights over land are
not the same as corporate rights over real property, much less corporate
condominium rights.A corporation can exist only for a maximum
of fifty (50) years subject to an extension of another fifty years in any
single instance.[213]Every stockholder has the right to disassociate
himself from the corporation.[214] Moreover, the corporation
itself may be dissolved voluntarily or involuntarily.[215]

Communal rights to the land
are held not only by the present possessors of the land but extends to all generations
of the ICCs/IPs, past, present and future, to the domain.This is the
reason why the ancestral domain must be kept within the ICCs/IPs
themselves.The domain cannot be
transferred, sold or conveyed to other persons.It belongs to the ICCs/IPs as a community.

Ancestral lands are also held
under the indigenous concept of ownership.The lands are communal.These lands, however, may be transferred
subject to the following limitations:(a) only to the members of the same ICCs/IPs; (b) in accord with
customary laws and traditions; and (c) subject to the right of redemption of
the ICCs/IPs for a period of 15 years if the land was transferred to a
non-member of the ICCs/IPs.

Following the constitutional
mandate that "customary law govern property rights or relations in
determining the ownership and extent of ancestral domains,"[216]the IPRA, by legislative fiat,
introduces a new concept of ownership.This is a concept that has long existed under customary law.[217]

Custom, from which customary
law is derived, is also recognized under the Civil Code as a source of law.[218]Some articles of the Civil Code expressly provide
that custom should be applied in cases where no codal provision is applicable.[219] In other words, in the
absence of any applicable provision in the Civil Code, custom, when duly
proven, can define rights and liabilities.[220]

Customary law is a primary, not secondary, source of rights
under the IPRA and uniquely applies to ICCs/IPs.Its recognition does not depend on the absence of a specific
provision in the civil law.The
indigenous concept of ownership under customary law is specifically
acknowledged and recognized, and coexists with the civil law concept and the
laws on land titling and land registration.[221]

To be sure, the indigenous
concept of ownership exists even without a paper title. The CADT is merely a "formal
recognition" of native title.This
is clear from Section 11 of the IPRA, to wit:

"Sec. 11.Recognition of Ancestral Domain Rights.--
The rights of ICCs/IPs to their ancestral domains by virtue of Native Title
shall be recognized and respected.Formal recognition, when solicited by ICCs/IPs concerned shall be
embodied in a Certificate of Ancestral Domain Title, which shall recognize the
title of the concerned ICCs/IPs over the territories identified and
delineated."

The moral import of ancestral
domain, native land or being native is "belongingness"
to the land, being people of the land-- by sheer force of having sprung from
the land since time beyond recall, and the faithful nurture of the land by the
sweat of one's brow.This is fidelity
of usufructuary relation to the land-- the possession of stewardship through
perduring, intimate tillage, and the mutuality of blessings between man and land;
from man, care for land; from the land, sustenance for man.[222]

C.Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the
Regalian Doctrine Enshrined in Section 2, Article XII of the 1987 Constitution.

1. The Rights of ICCs/IPs
Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs
several rights over their ancestral domains and ancestral lands.Section 7 provides for the rights over
ancestral domains:

"Sec. 7. Rights to
Ancestral Domains.-- The rights of ownership and possession of ICCs/IPs to
their ancestral domains shall be recognized and protected. Such rights include:

a) Right of Ownership.- The right to claim ownership over lands, bodies
of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time
within the domains;

b) Right to Develop Lands and
Natural Resources.-- Subject to
Section 56 hereof, the right to develop, control and use lands and territories
traditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization
of the natural resources found therein; the right to negotiate the terms and
conditions for the exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed
and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they
may sustain as a result of the project; and the right to effective measures by
the government to prevent any interference with, alienation and encroachment
upon these rights;"

c) Right to Stay in the
Territories.-- The right to stay in
the territory and not to be removed therefrom. No ICCs/IPs will be relocated
without their free and prior informed consent, nor through any means other than
eminent domain. x x x;

d) Right in Case of Displacement.-- In case displacement occurs as a result of natural
catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in
suitable areas where they can have temporary life support systems: x x x;

e) Right to Regulate the Entry
of Migrants.-- Right to regulate the
entry of migrant settlers and organizations into their domains;

f) Right to Safe and Clean Air
and Water.--For this purpose, the
ICCs/IPs shall have access to integrated systems for the management of their
inland waters and air space;

g) Right to Claim Parts of
Reservations.-- The right to claim
parts of the ancestral domains which have been reserved for various purposes,
except those reserved and intended for common and public welfare and service;

h) Right to Resolve Conflict.-- Right to resolve land conflicts in accordance
with customary laws of the area where the land is located, and only in default
thereof shall the complaints be submitted to amicable settlement and to the
Courts of Justice whenever necessary."

Section 8
provides for the rights over ancestral lands:

"Sec. 8. Rights to
Ancestral Lands.-- The right of ownership and possession of the ICCs/IPs to
their ancestral lands shall be recognized and protected.

a) Right to transfer
land/property.-- Such right shall
include the right to transfer land or property rights to/among members of the
same ICCs/IPs, subject to customary laws and traditions of the community
concerned.

b) Right to Redemption.-- In cases where it is shown that the transfer of
land/property rights by virtue of any agreement or devise, to a non-member of
the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or
is transferred for an unconscionable consideration or price, the transferor
ICC/IP shall have the right to redeem the same within a period not exceeding
fifteen (15) years from the date of transfer."

Section 7 (a) defines the
ICCs/IPs the right of ownership over their ancestral domains
which covers (a) lands, (b) bodies of water traditionally and actually occupied
by the ICCs/IPs, (c) sacred places, (d) traditional hunting and fishing grounds,
and (e) all improvements made by them at any time within the domains. The right
of ownership includes the following rights: (1) the right to develop lands
and natural resources; (b) the right to stay in the territories; (c) the right
to resettlement in case of displacement; (d) the right to regulate the entry of
migrants; (e) the right to safe and clean air and water; (f) the right to claim
parts of the ancestral domains as reservations; and (g) the right to resolve
conflict in accordance with customary laws.

Section 8 governs their rights to
ancestral lands.Unlike
ownership over the ancestral domains, Section 8 gives the ICCs/IPs also the
right to transfer the land or property rights to members of the same ICCs/IPs
or non-members thereof.This is in
keeping with the option given to ICCs/IPs to secure a torrens title over the
ancestral lands, but not to domains.

2.The Right of ICCs/IPs to Develop Lands and Natural Resources
Within the Ancestral Domains Does Not Deprive the State of Ownership Over the
Natural Resources and Control and Supervision in their Development and
Exploitation.

The Regalian doctrine on the
ownership, management and utilization of natural resources is declared in Section
2, Article XII of the 1987 Constitution, viz:

"Sec. 2. All lands
of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State.With the exception of agricultural lands,
all other natural resources shall not be alienated.The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State.The State may directly undertake such
activities, or, it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such
citizens.Such agreements may be
for a period not exceeding twenty-five years, renewable fornot more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights
for irrigation, water supply, fisheries, water supply, fisheries, or industrial
uses other than the development of water power, beneficial use may be the
measure and limit of the grant.

The State shall protect the
nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.

The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into
agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real contributions to
the economic growth and general welfare of the country.In such agreements, the state shall promote
the development and use of local scientific and technical resources.

The President shall notify the
Congress of every contract entered into in accordance with this provision,
within thirty days from its execution."[223]

All lands of the public domain
and all natural resources-- waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources-- are owned by the State.The Constitution provides that in the exploration, development
and utilization of these natural resources, the State exercises full control
and supervision, and may undertake the same in four (4) modes:

1.The State may directly undertake such activities; or

2.The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or qualified corporations;

4.For the large-scale exploration, development and utilization
of minerals, petroleum and other mineral oils, the President may enter into
agreements with foreign-owned corporations involving technical or financial
assistance.

As owner of the natural
resources, the State is accorded primary power and responsibility in the
exploration, development and utilization of these natural resources. The State
may directly undertake the exploitation and development by itself, or, it may
allow participation by the private sector through co-production,[224]joint venture,[225] or production-sharing
agreements.[226] These agreements may be for
a period of 25 years, renewable for another 25 years.The State, through Congress, may allow the small-scale
utilization of natural resources by Filipino citizens.For the large-scale exploration of these
resources, specifically minerals, petroleum and other mineral oils, the State,
through the President, may enter into technical and financial assistance
agreements with foreign-owned corporations.

Under the Philippine Mining Act
of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A.
7076) the three types of agreements, i.e., co-production, joint venture or
production-sharing, may apply to both large-scale[227]and small-scale mining.[228] "Small-scale
mining" refers to "mining activities which rely heavily on manual
labor using simple implements and methods and do not use explosives or heavy
mining equipment."[229]

Examining the IPRA, there is
nothing in the law that grants to the ICCs/IPs ownership over the natural
resources within their ancestral domains.The right of ICCs/IPs in their ancestral
domains includes ownership, but this "ownership" is expressly
defined and limited in Section 7 (a) as:

"Sec. 7. a) Right of
ownership-- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time
within the domains;"

The
ICCs/IPs are given the right to claim ownership over "lands, bodies of
water traditionally and actually occupied by ICCs/IPs, sacred places,
traditional hunting and fishing grounds, and all improvements made by them at
any time within the domains." It will be noted that this enumeration does
not mention bodies of water not occupied by the ICCs/IPs, minerals,
coal, wildlife, flora and fauna in the traditional
hunting grounds, fish in the traditional fishing grounds, forests
or timber in the sacred places, etc. and all other natural resources
found within the ancestral domains.Indeed,
the right of ownership under Section 7 (a) does not cover "waters, minerals,
coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife,
flora and fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to
the State.

The non-inclusion of ownership by
the ICCs/IPs over the natural resources in Section 7(a) complies with the
Regalian doctrine.

(a) Section 1, Part II,
Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of
the IPRA And is Unconstitutional.

"Section 1. Rights of
Ownership.ICCs/IPs have rights of
ownership over lands, waters, and natural resources and all improvements
made by them at any time within the ancestral domains/ lands.These rights shall include, but not limited
to, the right over the fruits, the right to possess, the right to use, right to
consume, right to exclude and right to recover ownership, and the rights or
interests over land and natural resources.The right to recover shall be particularly applied to lands lost through
fraud or any form or vitiated consent or transferred for an unconscionable
price."

Section 1
of the Implementing Rules gives the ICCs/IPs rights of ownership over
"lands, waters and natural resources." The term "natural
resources" is not one of those expressly mentioned in Section 7 (a) of the
law.Our Constitution and jurisprudence
clearly declare that the right to claim ownership over land does not
necessarily include the right to claim ownership over the natural resources
found on or under the land.[231]The IPRA itself makes a distinction between land and
natural resources. Section 7 (a) speaks of the right of ownership only over the
land within the ancestral domain.It is
Sections 7 (b) and 57 of the law that speak of natural resources, and these
provisions, as shall be discussed later, do not give the ICCs/IPs the right of
ownership over these resources.

The constitutionality of Section
1, Part II, Rule III of the Implementing Rules was not specifically and
categorically challenged by petitioners.Petitioners actually assail the constitutionality of the Implementing
Rules in general.[232]Nevertheless, to avoid any confusion in the implementation
of the law, it is necessary to declare that the inclusion of "natural
resources" in Section 1, Part II, Rule III of the Implementing Rules goes
beyond the parameters of Section 7 (b) of the law and is contrary to Section
2, Article XII of the 1987 Constitution.

(b) The Small-Scale
Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.

Ownership over natural
resources remain with the State and the IPRA in Section 7 (b) merely grants
the ICCs/IPs the right to manage them, viz:

"Sec. 7 (b) Right to
Develop Lands and Natural Resources.-- Subject to Section 56 hereof, right
to develop, control and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural resources within the
territories and uphold the responsibilities for future generations; to
benefit and share the profits from allocation and utilization of the
natural resources found therein; the right to negotiate the terms and
conditions for the exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed
and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they
may sustain as a result of the project; and the right to effective measures
by the government to prevent any interference with, alienation and
encroachment upon these rights;"

The right
to develop lands and natural resources under Section 7 (b) of the IPRA
enumerates the following rights:

a) the right to develop, control
and use lands and territories traditionally occupied;

b) the right to manage and conserve
natural resources within the territories and uphold the responsibilities
for future generations;

c) the right to benefit and share
the profits from the allocation and utilization of the natural resources
found therein;

d) the right to negotiate the terms
and conditions for the exploration of natural resources for the purpose
of ensuring ecological, environmental protection and the conservation measures,
pursuant to national and customary laws;

e) the right to an informed and
intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may
sustain as a result of the project;

f) the right to effective measures
by the government to prevent any interference with, alienation and encroachment
upon these rights.[233]

Ownership
over the natural resources in the ancestral domains remains with the State and
the ICCs/IPs are merely granted the right to "manage and conserve"
them for future generations, "benefit and share" the profits from
their allocation and utilization, and "negotiate the terms and conditions
for their exploration" for the purpose of "ensuring ecological and
environmental protection and conservation measures." It must be noted that the right to negotiate
the terms and conditions over the natural resources covers only their
exploration which must be for the purpose of ensuring ecological and
environmental protection of, and conservation measures in the ancestral
domain.It does not extend to the
exploitation and development of natural resources.

Simply stated, the ICCs/IPs'
rights over the natural resources take the form of management or stewardship.For the
ICCs/IPs may use these resources and share in the profits of their utilization
or negotiate the terms for their exploration.At the same time, however, the ICCs/IPs must ensure that the natural
resources within their ancestral domains are conserved for future generations
and that the "utilization" of these resources must not harm the
ecology and environment pursuant to national and customary laws.[234]

The limited rights of
"management and use" in Section 7 (b) must be taken to contemplate
small-scale utilization of natural resources as distinguished from
large-scale.Small-scale utilization of
natural resources is expressly allowedin the third paragraph of Section 2, Article XII of the Constitution "in recognition of the plight of forest
dwellers, gold panners, marginal fishermen and others similarly situated who
exploit our natural resources for their daily sustenance and survival."[235]Section 7 (b) also expressly mandates the ICCs/IPs to
manage and conserve these resources and ensure environmental and ecological
protection within the domains, which duties, by their very nature, necessarily
reject utilization in a large-scale.

(c) The Large-Scale
Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under
Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

Section 57 of the IPRA provides:

"Sec. 57. Natural Resources
within Ancestral Domains.-- The ICCs/IPs shall have priority rightsin the harvesting, extraction, development or exploitation of any
natural resources within the ancestral domains.A non-member of the ICCs/IPs concerned may be allowed to take
part in the development and utilization of the natural resources for a period
of not exceeding twenty-five (25) years renewable for not more than twenty-five
(25) years: Provided, That a formal and written agreement is entered
into with the ICCs/IPs concerned or that the community, pursuant to its own
decision-making process, has agreed to allow such operation: Provided
finally, That the NCIP may exercise visitorial powers and take appropriate
action to safeguard the rights of the ICCs/IPs under the same contract."

Section 57 speaks of the "harvesting,
extraction, development or exploitation of natural resources within
ancestral domains" and "gives the ICCs/IPs 'priority rights'
therein." The terms "harvesting, extraction, development or
exploitation" of any natural resources within the ancestral domains
obviously refer to large-scale utilization.It is utilization not merely for subsistence but for commercial
or other extensive use that require technology other than manual labor.[236]The law recognizes the probability of requiring a
non-member of the ICCs/IPs to participate in the development and utilization of
the natural resources and thereby allows such participation for a period of not
more than 25 years, renewable for another 25 years.This may be done on condition that a formal written agreement be
entered into by the non-member and members of the ICCs/IPs.

Section 57 of the IPRA does not
give the ICCs/IPs the right to "manage and conserve" the natural
resources.Instead, the law only grants
the ICCs/IPs "priority rights" in the development or exploitation
thereof.Priority means giving
preference.Having priority rights over
the natural resources does not necessarily mean ownership rights.The grant of priority rights implies that
there is a superior entity that owns these resources and this entity has
the power to grant preferential rights over the resources to whosoever itself
chooses.

Section 57 is not a repudiation
of the Regalian doctrine.Rather, it is
an affirmation of the said doctrine that all natural resources found within the
ancestral domains belong to the State.It incorporates by implication the Regalian doctrine,hence, requires that the provision be read
in the light of Section 2, Article XII of the 1987 Constitution.Interpreting Section 2, Article XII of
the 1987 Constitution[237]in relation to Section 57 of IPRA, the State, as owner of
these natural resources, may directly undertake the development and
exploitation of the natural resources by itself, or in the alternative, it may
recognize the priority rights of the ICCs/IPs as owners of the land on
which the natural resources are found by entering into a co-production, joint
venture, or production-sharing agreement with them. The State may likewise enter into any of said agreements with a
non-member of the ICCs/IPs, whether natural or juridical, or enter into agreements
with foreign-owned corporations involving either technical or financial
assistance for the large-scale exploration, development and utilization of
minerals, petroleum, and other mineral oils, or allow such non-member to
participate in its agreement with the ICCs/IPs.If the State decides to enter into an agreement with a non-ICC/IP
member, the National Commission on Indigenous Peoples (NCIP) shall ensure that
the rights of the ICCs/IPs under the agreement shall be protected.The agreement shall be for a period of 25
years, renewable for another 25 years.

To reiterate, in the large-scale
utilization of natural resources within the ancestral domains, the State, as
owner of these resources, has four (4) options: (1) it may, of and by itself,
directly undertake the development and exploitation of the natural resources;
or (2) it may recognize the priority rights of the ICCs/IPs by entering into an
agreement with them for such development and exploitation; or (3) it may enter
into an agreement with a non-member of the ICCs/IPs, whether natural or
juridical, local or foreign; or (4) it may allow such non-member to participate
in the agreement with the ICCs/IPs.

The rights granted by the IPRA
to the ICCs/IPs over the natural resources in their ancestral domains merely
gives the ICCs/IPs, as owners and occupants of the land on which the resources
are found, the right to the small-scale utilization of these resources, and at
the same time, a priority in their large-scale development and exploitation.Section
57 does not mandate the State to automatically give priority to the
ICCs/IPs.The State has several options
and it is within its discretion to choose which option to pursue.Moreover, there is nothing in the law that
gives the ICCs/IPs the right to solely undertake the large-scale development of
the natural resources within their domains.The ICCs/IPs must undertake such endeavour always under State
supervision or control.This indicates
that the State does not lose control and ownership over the resources even in
their exploitation.Sections 7 (b) and
57 of the law simply give due respect to the ICCs/IPs who, as actual occupants
of the land where the natural resources lie, have traditionally utilized these
resources for their subsistence and survival.

Neither is the State stripped of
ownership and control of the natural resources by the following provision:

"Section 59. Certification
Precondition.-- All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any
concession, license or lease, or entering into any production-sharing
agreement.without prior certification
from the NCIP that the area affected does not overlap with any ancestral
domain.Such certification shall only
be issued after a field-based investigation is conducted by the Ancestral
Domains Office of the area concerned: Provided, That no certification
shall be issued by the NCIP without the free and prior informed and written
consent of the ICCs/IPs concerned: Provided, further, That no
department, government agency or government-owned or -controlled corporation
may issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the
ICCs/IPs shall have the right to stop or suspend, in accordance with this Act,
any project that has not satisfied the requirement of this consultation
process."

Concessions,
licenses, lease or production-sharing agreements for the exploitation of
natural resources shall not be issued, renewed or granted by all departments
and government agencies without prior certification from the NCIP that the area
subject of the agreement does not overlap with any ancestral domain.The NCIP certification shall be issued only
after a field-based investigation shall have been conducted and the free and
prior informed written consent of the ICCs/IPs obtained. Non-compliance with
the consultation requirement gives the ICCs/IPs the right to stop or suspend
any project granted by any department or government agency.

As its subtitle suggests, this
provision requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by
the NCIP that the area subject of the agreement does not lie within any
ancestral domain.The provision does
not vest the NCIP with power over the other agencies of the State as to
determine whether to grant or deny any concession or license or agreement.It merely gives the NCIP the authority to
ensure that the ICCs/IPs have been informed of the agreement and that their
consent thereto has been obtained.Note
that the certification applies to agreements over natural resources that do not
necessarily lie within the ancestral domains.For those that are found within the said domains, Sections 7(b) and 57
of the IPRA apply.

V.THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE
INDIGENOUS INTERNATIONAL MOVEMENT.

The indigenous movement can be
seen as the heir to a history of anti-imperialism stretching back to
prehistoric times.The movement
received a massive impetus during the 1960's from two sources.First, the decolonization of Asia and Africa
brought into the limelight the possibility of peoples controlling their own
destinies.Second, the right of
self-determination was enshrined in the UN Declaration on Human Rights.[238]The rise of the civil rights movement and anti-racism
brought to the attention of North American Indians, Aborigines in Australia,
and Maori in New Zealand the possibility of fighting for fundamental rights and
freedoms.

In 1974 and 1975, international
indigenous organizations were founded,[239]and during the 1980's, indigenous affairs were on the
international agenda.The people of the
Philippine Cordillera were the first Asians to take part in the international
indigenous movement.It was the
Cordillera People's Alliance that carried out successful campaigns against the
building of the Chico River Dam in 1981-82 and they have since become one of
the best-organized indigenous bodies in the world.[240]

Presently, there is a growing
concern for indigenous rights in the international scene.This came as a result of the increased
publicity focused on the continuing disrespect for indigenous human rights and
the destruction of the indigenous peoples' environment, together with the
national governments' inability to deal with the situation.[241]Indigenous rights came as a result of both human
rights and environmental protection, and have become a part of today's
priorities for the international agenda.[242]

International institutions and
bodies have realized the necessity of applying policies, programs and specific
rules concerning IPs in some nations.The World Bank, for example, first adopted a policy on IPs as a result
of the dismal experience of projects in Latin America.[243]The World Bank now seeks to apply its current policy
on IPs to some of its projects in Asia.This policy has provided an influential model for the projects of the
Asian Development Bank.[244]

The 1987 Philippine Constitution
formally recognizes the existence of ICCs/IPs and declares as a State policy
the promotion of their rights within the framework of national unity and
development.[245]The IPRA amalgamates the Philippine category of ICCs
with the international category of IPs,[246] and is heavily influenced
by both the International Labor Organization (ILO) Convention 169 and the
United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.[247]

ILO Convention No. 169 is
entitled the "Convention Concerning Indigenous and Tribal Peoples in
Independent Countries"[248]and was adopted on June 27, 1989.It is based on the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and many other
international instruments on the prevention of discrimination.[249] ILO Convention No. 169
revised the "Convention Concerning the Protection and Integration of
Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries"
(ILO No. 107) passed on June 26, 1957.Developments in international law made it appropriate to adopt new
international standards on indigenous peoples "with a view to removing the
assimilationist orientation of the earlier standards," and recognizing the
aspirations of these peoples to exercise control over their own institutions,
ways of life and economic development."[250]

CONCLUSION

The struggle of the Filipinos
throughout colonial history had been plagued by ethnic and religious
differences.These differences were
carried over and magnified by the Philippine government through the imposition
of a national legal order that is mostly foreign in origin or derivation.[251]Largely unpopulist, the present legal system has resulted
in the alienation of a large sector of society, specifically, the indigenous
peoples.The histories and cultures of
the indigenes are relevant to the evolution of Philippine culture and are vital
to the understanding of contemporary problems.[252] It is through the IPRA
that an attempt was made by our legislators to understand Filipino society not
in terms of myths and biases but through common experiences in the course of
history.The Philippines became a democracy
a centennial ago and the decolonization process still continues.If the evolution of the Filipino people into
a democratic society is to truly proceed democratically, i.e., if the Filipinos
as a whole are to participate fully in the task of continuing democratization,[253] it is this Court's duty to
acknowledge the presence of indigenous and customary laws in the country and
affirm their co-existence with the land laws in our national legal system.

With the foregoing disquisitions,
I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of
1997.

[1] Chief Judge, US Court of Appeals for the Seventh
Circuit; Senior Lecturer, University of Chicago Law School.

[5] Antonio H. Noblejas, Land Titles and Deeds, p. 5
[1986]; these grants were better known as repartimientos and encomiendas.Repartimientos were handouts to the military
as fitting reward for their services to the Spanish crown.The encomiendas were given to Spaniards to
administer and develop with the right to receive and enjoy for themselves the
tributes of the natives assigned to them.-- Ponce, supra, p. 12, citing
Benitez, History of the Philippines, pp. 125-126.

[14]Id. at 542-543.These comments by the court are clear expressions of the concept
that Crown holdings embraced both imperium and dominium—Ma.
Lourdes Aranal-Sereno and Roan Libarios,The Interface Between National Land Law and Kalinga Land Law, 58
P.L.J. 420, 423 [1983].

[42] Guide to R.A. 8371, published by the
Coalition for Ips Rights and ancestral Domains in cooperation with the ILO and
Bilance-Asia Department, p. 4 [1999]—hereinafter referred to as Guide to
R.A. 8371.

[43] Taken from the list of IPs sbmitted by Rep. Andolana
to the house of Representatives during the deliberations on H.B. No.
9125—Interpellations of Aug. 20, 1997, pp. 00086-00095.“lost tribes” such as the Lutangan and
Tatang have not been included.

[44] How these people came to the
Philippines may be explained by two theories.One view, generally linked to Professor Otley H. Beyer, suggests the
“wave theory”—a series of arrivals in the archipelago bringing in different
types and levels of culture.The
Negritos, dark-skinned pygmies, came between 25,000 to 30,000 B.C.Their cultural remains are preserved by the
Negrito-type Filipinos found in Luzon, Visayas and Mindanao.Their relatively inferior culture did not
enable them to overcome the pressures from the second wave of people, the
Indonesians A and B who came in 5,000 and 3,500 B.C.They are represented today by the Kalinga, Gaddang, Isneg,
Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama.The first group was pushed inland as the
second occupied the coastal and downriver settlements.The last wave involved Malay migrations
between 500 B.C. and 1,500 A.D.they
had a more advanced culture based on metal age technology.They are represented by the Christianized
and Islamized Filipinos who pushed the Indonesian groups inland and occupied
much of the coastal, lowland and downstream areas.

A second view is postulated by
Robert Fox, F. Landa Jocana, Alfredo Evangelista, and Jesus Peralta.Jocano maintains that the Negritos,
Indonesians and Malays stand co-equal as ethnic groups without any one being dominant,
racially or culturally.The geographic
distribution of the ethno-linguistic groups, which shows overlapping of
otherwise similar racial strains in both upland and lowland cultures or coastal
and inland communities, suggests a random and unstructured advent of different
kinds of groups in the archipelago—Samuel K. Tan, A History of the
Philippines, published by the Manila Studies Association, Inc. and the
Philippine National Historical society, Inc., pp. 33-34 [1997]; Teodoro A.
Agoncillo, History of the Filipino People, p. 21 [1990].

[54] Rafael Iriarte, History of the Judicial System,
the Philippine Indigenous Era Prior to 1565, unpublished work submitted as
entry to the Centennial Essay-Writing Contest sponsored by the National
Centennial Commission and the Supreme Court in 1997, p. 103, citing Perfecto V.
Fernandez, Customs Laws in Pre-Conquest Philippines, UP Law Center, p.
10 [1976].

[56] Amelia Alonzo, The History of the Judicial System
in the Philippines, Indigenous Era Prior to 1565, unpublished work
submitted as entry to the Centennial Essay-Writing Contest sponsored by the National
Centennial Commission and the Supreme Court in 1997.

[64] Cacho v. Government of the P.I., 28 Phil.
616, 625-627 [1914]; see also Ponce, The Philippine Torrens System, pp.
11-12 [1964].In Philippine
pre-colonial history, there was only one recorded transaction on the purchase
of land.The Maragtas Code tells us of
the purchase of Panay Island by ten Bornean datus led by Datu Puti from the Atis
under Marikudo in the 13th century.The purchase price for the island was a gold
salakot and a long gold necklace – Agoncillo, supra, at 25.

[74]Id., N.B. But see discussion in Cariño
v. Insular Government, infra, where the United States Supreme Court
found that the Spanish decrees in the Philippines appeared to recognize that the
natives owned some land.Whether in
the implementation of these decrees the natives’ ancestral rights to land were actually
respected was not discussed by the U.S. Supreme Court; see also Note 131,
infra.

[90] The PANAMIN, however, concentrated funds and
resources on image-building, publicity, and impact projects.In Mindanao, the agency resorted to a policy
of forced resettlement on reservations, militarization and intimidation--MacDonald, Indigenous Peoples of the
Philippines, supra, at 349-350.

[91] No occupancy certificates were issued, however,
because the government failed to release the decree’s implementing rules and
regulations--Abelardo, supra, at
120-121.

“Believing that the new government
is committed to formulate more vigorous policies, plans, programs, and projects
for tribal Filipinos, otherwise known as Indigenous Cultural Communities,
taking into consideration their communal aspirations, customs, traditions,
beliefs, and interests, in order to promote and preserve their rich cultural
heritage and insure their participation in the country’s development for
national unity; xxx”

The Eighth
Congress, through Senators Rasul, Estrada and Romulo filed a bill to
operationalize the mandate of the 1987 Constitution on indigenous peoples.The bill was reported out, sponsored an
interpellated but never enacted into law.In the Ninth Congress, the bill filed by Senators Rasul and
Macapagal-Arroyo was never sponsored and deliberated upon in the floor.

[122] A CADT refers to a title formally recognizing the right
of possession and ownership of ICCs/IPs over their ancestral domains identified
and delineated in acordance with the IPRA—Rule II [c], Rules & Regulations
Implementing the IPRA, NCIP Admin. Order No. 1.

[131] It was the practice of the Spanish colonial
government not to issue titles to Igorots—Owen J. Lynch, Jr., Invisible Peoples
and a Hidden Agenda:The Origins of
Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988],
citing the testimony of Benguet Provincial Governnor William F. Pack, Records
at 47, Cariño.

[136] In 1901, Cariño had entered into a promissory
agreement with a U.S. merchant in Manila.The note obliged Cariño to sell the land at issue “as soon as he obtains
from the Government of the United States, or its representatives in the
Philippines, real and definitive title.”See Lynch, Invisible Peoples, supra, at 290, citing Government’s
Exhibit G, Records, at 137-138, Cariño.

[142]Aranal-Sereno and Libarios, The Interface Between
Kalinga Land Law, supra at 428--This artcile was one of those circulated
among the Constitutional Commissioners in the formulation of Sec. 5, Article
XII of the 1987 Constitution (4 Record of the Constitutional Commission 33).

[144]Certificate of Title No. 2 covering the 148 hectares
of Baguio Municipality was issued not in the name of Cariño who died on June 6,
1908, but to his lawyers John Hausserman and Charles Cohn and his
attorney-in-fact Metcalf Clarke.Hausserman, Cohn and Clarke sold the land to the U.S. Government in a
Deed of Quitclaim--Richel B. Langit, IgorotDescendants Claim Rights
to Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.

[155]There are 3 kinds of Indian
reservations: (a) those created by treaties prior to 1871; (b) those created by
acts of Congress since 1871; and (c) those made by Executive Orders where the
President has set apart public lands for the use of the Indians in order to
keep them within a certain territory-- 42 C.J.S., Indians, Sec. 29 citing Sioux
Tribe of Indians v. U.S. 94 Ct. Cl. 150, 170, certiorari granted 62 S.
Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct. 1095, 316 U.S. 317,
86 L. Ed. 1501.It is observed that
the first two kinds may include lands possessed by aboriginal title.The last kind covers Indian reservations
proper.

Until 1871, Indian tribes were recognized by the United
States as possessing the attributes of nations to the extent that treaties were
made with them.In that year, however,
Congress, by statute, declared its intention thereafter to make the Indian
tribes amenable directly to the power and authority of the United States by the
immediate exercise of its legislative power over them, instead of by
treaty.Since then, Indian affairs have
been regulated by acts if Congress and by contracts with the Indian tribes practically
amounting to treaties-- 41 Am Jur 2d, Indians, Sec. 55 [1995 ed].

[169]The title of the government to Indian lands, the naked
fee, is a sovereign title, the government having no landlord from whom it holds
the fee-- Shoshone Tribe of Indians of Wind River Reservation in Wyoming v.
U.S., 85 Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe
of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct.
794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].

[175]For compensation under the Indian Claims Commission
Act, the proof of aboriginal title rests on actual, exclusive and continuous
use and occupancy for a long time prior to the loss of the property.(The Indian Claims Commission Act awards
compensation to Indians whose aboriginal titles were extinguished by the
government through military conquest, creation of a reservation, forced
confinement of Indians and removal of Indians from certain portions of the land
an the designation of Indian land into forest preserve, grazing district, etc.)
-- Aboriginal Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp.
431, 433, 437.

[178]An allotment of Indian land contains restrictions on
alienation of the land.These
restrictions extend to a devise of the land by will-- Missouri, K. & T.R.
Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad
land grant that falls within Indian land is null and void-- Northern P. R. Co. v.
U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land
necessary for a railroad right of way were, by the terms of the treaty,
declared “public land,” implying that land beyond the right of way was
private-- Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S.
Ct. 780 [1912]; see also 41 Am Jur 2d, Indians, Sec. 58 [1995 ed].

[182]North American Indians have made much progress in
establishing a relationship with the national government and developing their
own laws.Some have their own
government-recognized constitutions.Usually the recognition of Indian tribes depends on whether the tribe
has a reservation.North American
tribes have reached such an advanced stage that the main issues today evolve
around complex jurisdictional and litigation matters.Tribes have acquired the status of sovereign nations within
another nation, possessing the right to change and grow-- Jose Paulo Kastrup, The
Internationalization of Indigenous Rights from the Environmental and Human
Rights Perspective, Texas International Law Journal, vol. 32: 97, 104
[1997].

[186]D. Gatmaytan, supra, citing Churchill, The
Earth is Our Mother:Struggles for
American Indian Land and Liberation in the Contemporary United States, The State
of Native America: Genocide, Colonization and Resistance 139 (M. Jaimes 1992);
and Indian Law Resource Center, United States Denial of Indian Property
Rights:A Study in Lawless Power and
Racial Discrimination, Rethinking Indian Law 15 (National Lawyers Guild,
Committee on Native American Struggles 1982).

[187]Id., Note
28, stating that some earlier decisions of the U.S. Supreme Court have held
that Congress is subject to the strictures of the Constitution in dealing with
Indians.When an Indian property is
taken for non-Indian use, the U.S. government is liable for payment of
compensation, and an uncompensated taking may be enjoined.F. Cohen, Handbook of Federal Indian Law 217
[1982], citing Shoshone Tribe v. U.S.299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S. 665 [1912]; and
Lane v. Pueblo of Santa Rosa, 249 U.S. 110 [1919].

[197]“Time immemorial” refers “to a period of time when as
far back as memory can go, certain ICCs/Ips are known to have occupied,
possessed in the concept of owner, and utilized a defined territory devolved to
them, by operation of customary law or inherited from their ancestors, in
accordance with their customs and traditions.”(Sec. 3 [p], IPRA).

[204] Words in bold were amendments introduced by R.A.
3872 on June 18, 1964.On January 25,
1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating
that these provisions on cultural minorities apply only to alienableand
disposable lands of the public domain-- Please see Republic v.
CA and Paran, 201 SCRA 1, 10-11 [1991].

“Sec. 55. Communal rights.--Subject to Section 56 hereof, areas within
the ancestral domains, whether delineated or not, shall be presumed to be
communally held:provided, That
communal rights under this Act shall not be construedas
co-ownership as provided in Republic Act No. 386, otherwise known as the New
Civil Code.”

[217] Customary law is recognized by the
Local Government Code of 1991 in solving disputes among members of the
indigenous communities, viz:

“Sec. 412
(c)Conciliation among members of
indigenous cultural communities.--The customs and traditions of indigenous
cultural communities shall be applied in settling disputes between members of
the cultural communities.”

“Art. 11.Customs which are contrary to law, public
order or public policy shall not be countenanced.”

“Art. 12.A custom
must be proved as a fact, according to the rules of evidence.”

[219] Article 78 on marriages between Mohammedans or
pagans who live in the non-Christian provinces-- this is now Art. 33 of the
Family Code; Art. 118, now Art. 74 of the Family Code on property relations
between spouses; Art. 577 on the usufructuary of woodland; Art. 657 on easement
of right of way for passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and
1577.Please see Aquino, Civil Code,
vol. 1, p. 25.

[221] This situation is analogous to the Muslim code or
the Code of Muslim Personal Laws (P.D. 1083) which took effect on February 4,
1977 despite the effectivity of the Civil Code and the Family Code.P.D. 1083 governs persons, family relations
and succession among Muslims, the adjudication and settlement of disputes, the
organization of the Shari’a courts, etc.

[224] A “co-production agreement” is defined as one
wherein the government provides input to the mining operation other than the
mineral resource-- Section 26 (b), R.A. 7942, the Philippine Mining Act of
1995.

[225] A "joint venture agreement" is one where a
joint-venture company is organized by the government and the contractor with both
parties having equity shares, and the government entitled to a share in the
gross output-- Section 26 (c), R.A. 7942.

[226] A mineral "production-sharing agreement"
is one where the government grants to the contractor the exclusive right to
conduct mining operations within a contract area and shares in the gross
output. The contractor provides the financing, technology, management and
personnel necessary for the implementation of the agreement-- Section 26 (a),
R.A. 7942.

"Sec. 3 [d] 'Small-scale mining contract'
refersto co-production, joint venture
or mineral production sharing agreement between the State and a small-scale
mining contractor for the small-scale utilization of a plot of mineral
land."

[231] In Republic v. Court of Appeals, 160 SCRA
228, 239 [1988], Cruz, J., ponente, it was declared that if a
person is the owner of a piece of agricultural land on which minerals are
discovered, his ownership of such land does not give him the right to extract
or utilize the said minerals without the permission of the State to which such
minerals belong-- also cited in H. de Leon, Phil. Constitutional Law,
Principles and Cases, vol. 2, pp. 800-801 [1999].

The law took effect 15 days upon
publication in the O.G. or in any 2 newspapers of general circulation (Sec. 84,
IPRA). The IPRA was published in the Chronicle and Malaya on Nov. 7, 1997.

[234] Section 9 of the IPRA also gives the ICCs/IPs
the ff. responsibilities over their ancestral domains:

(a) Maintain Ecological Balance-- To preserve, restore, and maintain
a balanced ecology in the ancestral domain by protecting the flora and fauna,
watershed areas, and other reserves;

(b) Restore Denuded Areas.-- To actively initiate, undertake and
participate in the reforestation of denuded areas and other development
programs and projects subject to just and reasonable renumeration;

(c) Observe Laws.-- To observe and comply with the provisions of
this Act and the rules and regulations for its effective implementation."

Section 58 of the same law also mandates that ancestral domains
or portions thereof, which are found to be necessary for critical watersheds,
mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or
reforestation as determined by appropriate agencies with the full participation
of the ICCs/IPs concerned shall be maintained, managed and developed for such
purposes.The ICCs/IPs concerned shall
be given the responsibility to maintain, develop, protect and conserve such
areas with the full and effective assistance of government agencies.

[235] Hector S. de Leon, Textbook on the New Philippine
Constitution pp. 473-474 [1987] citing the 1986 UP Law Constitution Project,
The National Economy and Patrimony, p. 11.

[236] Under the Small-Scale Mining Act of 1991,
"small-scale mining" refers to "mining activities which rely
heavily on manual labor using simple implements and methods and do not use
explosives or heavy mining equipment"-- Section 3 [b],R.A. 7076.

[242] Benedict Kingsbury, "Indigenous Peoples"
in International Law: A Constructivist Approach to the Asian Controversy, The
American Journal of International Law, vol. 92: 414, 429 [1998].

[243] The World Bank supported the Chico Dam project. Due
to the Kalingas' opposition, the WB pulled out of the project but the conflict
between the Philippine government and the natives endured long after-- Marcus
Colchester, Indigenous Peoples' Rights and Sustainable Resource Use in South
and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.